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Written Submissions to Joint Physical Custody Study Group

Hard Copy Version with Names of Submitters(Updated -w- names on January 6, 2009)

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Submission For Joint Physical Custody

Written Submissions FOR a Presumption of Joint Physical Custody

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Joint Custody Study Group,

I am glad to see that this issue is being studied by our state. I believe that a presumption of joint physical and legal custody is in the best interest of the vast majority of children and parents. In the vast majority of cases, both parents, even when the child is born to unmarried parents, are capable, willing, proud and loving parents who are equally fit to have custody of their children. With a presumption of joint custody, children will benefit from a more even amount of time spent at each of their homes to build strong relationships with both of their parents. Parents and children will benefit from the fairness and balance of "power" inherent in joint custody because it will encourage cooperation. The current system allows one parent to actively make cooperation and co-parenting difficult in order to state that joint custody is not feasible and full custody should remain with (or be transferred to) themselves.

Both parents should be allowed an equal say in how their child is raised and should be allowed to support the child both monetarily and emotionally. In the current system it is more common that one parent is assigned the responsibility for monetary support of the child and the other for the emotional support, or day-to-day parenting, of the child. In most cases at this time it is the father who is assigned the monetary support and is allowed only a little time to provide emotional support. Monetary support of a child when that parent only occasionally gets to spend significant amount of time with their child builds resentment about paying child support and makes it difficult for that parent to build a quality relationship with their child. Monetarily supporting a child is natural when that child is living with you on a regular basis. A joint custody situation would allow both parents to be both monetary and emotional support for their children. Both parents would be allowed the time to provide the day-to-day parenting that is so important to the child's development.

I understand that in cases of documented domestic violence this presumption is likely not valid. However, I caution that at this time it is quite easy for one parent to file domestic abuse charges against another parent and have those charges stand even if no violence occurred. False allegations of domestic abuse are common, and the charges are often upheld in court because no physical evidence is needed to document such charges. I encourage you to consider how to ensure that the presumption of joint custody, in its exception for cases of domestic violence, differentiates between actual domestic violence and misuse of the current laws regarding domestic abuse in order to gain full custody of a child.

I strongly encourage you to recommend a presumption of joint physical and legal custody. In my experience I believe that it will better encourage the full involvement of both parents in their children's lives. -- Lisa Tilman

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Regarding a presumption of joint physical custody

A strong presumption of joint physical custody of children should be the law. Since parental rights are “the oldest of fundamental liberties" according to the U.S. Supreme Court, the burden of proof should be on the parent or other parties who want to take away that right.

Since anger is the NORMAL response to injustice, the current de facto presumption of mother custody of children is promoting domestic violence including thousands of domestic abuse related suicides each year. Each year about 5000 men are driven to suicide by abusive women using the gender biased court as their weapon of choice. The Duluth Wheel of Abuse is a good description of how woman act in custody fights.

Women's groups claim domestic violence sky rockets at the time of a breakup. This is logical and to be expected. At the time of a breakup, every man knows the woman will use her female privileges to strip the man of his children, assets, future income, civil liberties and anything else dear to him.

Anger is the normal response to such catastrophic losses. The courts amplify the anger by refusing to punish, or worse, rewarding women for perjury and other misconduct. Men know this to be the case since they have all heard the horror stories of other men. If you want to make a man angry, there is no surer way than to harm his kids.

Suicide rates of divorced men triple but those of divorced women do not, indicating that it is men's treatment by the courts that is the primary causative factor of the increase. The number of lives lost to family court related suicides is four times that of women’s lives lost to domestic violence. How happy would you be if your children were taken away from you? Would you be angry at the kidnappers??

THOSE WHO OPPOSE JOINT PHYSICAL CUSTODY HAVE CREATED AN EPIDEMIC OF FATHERLESSNESS. Minnesota Courts and the Legislature have made clear that the alternative to a presumption of joint physical custody is a presumption of mother custody. The true cost of opposing joint physical custody is over 100 billion annually - all the costs of father absence to children and society.

Most child abuse is committed by mothers, especially single mothers. Judges who issue orders of protection based on unsubstantiated or minimal abuse are erring on the side of child abuse. The non-related men that single mothers bring into the household are the greatest threat of child sexual abuse. Such men are also much more likely to abuse or kill the children than the natural father.

Being raised in a mother headed household is the primary risk factor for child poverty. Custodial fathers are much more willing to financially support their children than mothers who are more likely to go on welfare instead. Welfare queens tend to raise welfare queens.

Mother headed households produce most of our criminals, drug abusers and academic failures. Children raised in such homes tend to earn less money as adults thereby reducing tax revenues to the state.

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Sole custody arrangements promote conflict and often bankrupt the parties at the expense of the children. The money that would have been available to help the children instead is spent on legal bills.

The fact that the parties do not cooperate should not be a reason to deny equal parenting time. The current bias in the courts gives women an incentive to be uncooperative. The court can order parallel parenting. To reduce conflict the law should require that a detailed parenting plan be written spelling out decision making provisions, parenting time and penalties for obstructing it. If advisable, a neutral location for child transfers should be designated to protect men from false allegations of abuse. Unless it is clear that it will not work, the court should order 50/50 parenting time in cases where the parties can't reach an agreement. Women should no longer be rewarded for deliberately being uncooperative. If the court does not order 50/50, it should be required to state why the parent deprived deserves to have his/her parental rights diminished.

The current presumption of sole custody to mom of children born out of wedlock should be changed to require automatic joint custody once recognition of parentage form is signed, with a requirement that a parenting plan be implemented within 3 months. Men who have no money cannot afford to hire an attorney to fight for custody when it would be in the children’s best interest to NOT live with mom. Mom can almost always get a free attorney. All she has to do is make a false allegation of abuse or refuse to get a job. Such options are rarely available to men.

To reduce child poverty, create a presumption of custody of children to the parent who is not on welfare. If women were not “burdened” with custody, they would find it easier to seek and maintain full time employment. Women would be less likely to have children out of wedlock if they knew the state would not reward their irresponsible behavior with automatic sole custody and a monthly check. It is not in society’s best interest to encourage mother headed households, since every major social pathology is linked to fatherlessness.

My husband has a 13 year old son who, barring a miracle, will probably not graduate from high school. Mom was granted custody originally as a reward for having a child out of wedlock. 3 lawyers told my husband a man cannot get custody over a mother’s objections without proving the mother palpably unfit. He fought for custody anyway because he knew of her substance abuse problems. 2 years later, out of money and hope, he gave up the fight.

He filed for a reversal of custody in 2005. The Guardian ET Litem appointed was so incompetent and biased that Anoka County cancelled her contact, but not before she did irreparable damage to the case. The GAL dismissed all of our allegations as unsubstantiated even though corroborating evidence existed but swallowed all of the mom’s lies. She did not contact any references or attempt to verify any allegations. To make matters worse, Judge Donald Venne repeatedly delayed the case for his own personal convenience. (vacations, continuing education etc.) After 2 years, we could not afford to continue. At our attorney’s advice, we reluctantly agreed to a worthless settlement not knowing that mom was arrested last year for 5th degree drug possession (felony) and driving under the influence of methamphetamine.

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In spite of the mom’s continuing drug problems, we cannot afford another custody fight. So the child will spend the rest of his childhood with a druggy mom because of the gender biased courts that insist that children belong with their mothers.

In 2002, my husband filed a constitutional challenge of Minnesota’s child support laws because of our firm belief that the primary reason women demand sole custody instead of joint custody is money. At the time his parenting schedule was every weekend from Friday afternoon until Sunday night, 2 evening per week and 4 weeks in the summer. Even though my husband had de facto joint physical custody, he could not get the title since that would require mom to support her child instead of living off of him.

Since mom has refused to work since 2000, Randy has paid for all of the child’s expenses in both households, including de facto alimony to a deadbeat mom. In a published decision, the Minnesota Appeals Court ruled that custodial parents essentially have no duty to financially support their children since they provide services. In this case (Strandmark v Starr), the noncustodial parent clearly paid everything and provided more services than the freeloader mom. Yet his “services” were not grounds for reducing child support. The change in the child support laws does not make things fairer. The parent with the title gets the time and the money.

Although my husband has de facto joint custody, the child is being harmed because of the legislature’s and court’s refusal to hold women to an adult standard of accountability. The money needed to provide for the child’s special needs has instead been diverted to pay legal fees and the living expenses of a freeloader mom who is rewarded for refusing to work instead of punished. Had there been a presumption of joint physical custody at the time of the breakup, the mom would not have been able to exploit the child for profit nor would my husband have been forced to spend tens of thousands on legal fees.

-- Barbara Starr_________________________________________________________________________________________________________________Implications of Presumptive Joint Physical Custody for Minnesota families: Yes , I believe there should be a change in Minnesota's custody laws to favor the joint physical custody. The impact on the children to spend near equitable time with both parents , witness both parents contributing monetarily to their well being and diminish the opportunity for parents to involve the child in a custody battle can only benefit the children of divorce in Minnesota. Currently, I believe the system impacts children adversely by presuming only one parent can have physical custody. This leads to a greater number of custody cases by presuming one parent cannot share physical custody and leaving this presumed non-custodial parent to challenge for equal time in our court system. These challenges negatively affect the children involved since many children need to be questioned about mom and dad before a decision is reached. Currently, when one parent is "awarded" custody, the negative effects of this decision begin in the relationship between the child and the non-custodial parent. These effects will leave different impressions on the children according to their age and developmental status from the ability to make strong bonds with younger children to a view through the

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eyes of older children that one parent does not want to spend more time with them or there must be a "reason" they cannot stay with this parent more often.

Unless there is a history of domestic violence, claims of child abuse or substantiated claims of abuse, neither parent should enter the court on unequal footing with the other parent. This equates to walking into a courtroom guilty and needing to prove innocence. By the state presuming sole physical custody it is also expecting a lower level of interaction both emotionally and physically from the non-custodial parent. It is extremely difficult and many times legally impossible for a non-custodial parent to give the same amount of time to their child after a divorce. I believe that by both parents entering divorce proceedings with the presumption they will be giving equal time to their children, the disengaging of the child by the non-custodial parent will diminish greatly. If this changes, there will be a presumption by the state that both parents will equally share in the raising of the child. I would be glad to speak further on this subject if you would like.

Chris Olson B.A. Human Services / Family StudiesCo-parenting mediator - Community Mediation Services ________________________________________________________________________________________________________________

Presumptive Joint Physical Custody- A Real Life Study

I am the divorced father of two children; a 20 year old son who is a junior at a Big Ten university and a 17 year old daughter who is a senior in a public high school in Twin Cities. I understand that the State Court Administrator is evaluating the merits of a change in Minnesota law to include a presumption that all children should be in the joint physical custody of both their mother and father. I applaud both the Legislature and the Court Administrator for recognizing the importance of such a presumption under Minnesota law.

Circumventing a discriminatory system:

I was divorced over 11 years ago. I watched as other committed and engaged fathers wound their way through the maze of family court in an attempt to offer their children the benefits of their continuing engagement after the divorce. Invariably, following various count-mandated evaluations and hearings, the father was awarded "visitation" which was a code word for custody granted to the children's mother with limited opportunity to allow their children the benefits of a fatherly touch to their upbringing. Likewise, my own attorney advised me that as professional, working father I had almost no chance of being awarded joint physical custody of my own children. This was unthinkable to me. My attorney helped me to find the solution. I sought my ex-wife's approval to participate in a mediated resolution of our divorce. This did not necessarily guarantee me the opportunity to negotiate a joint physical custody arrangement for the benefit of my children,

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but it did offer me the opportunity to acquire joint physical custody by offering to purchase this option. Said another way, I offered (and ultimately agreed) to pay child support and spousal maintenance far in excess of Minnesota guidelines and additionally to cover virtually all of my children's extra-curricular activity costs in order to be awarded the privilege of participating in my children's future. Although I have observed that virtually none of the approximately $280,00 of "child support" I have paid to my children's mother has been expended for the benefit of my children, I come to view this child support as a means of ensuring my children receive the emotional, moral and physical support they need from their father. In other words, it is the support (i.e. money) I pay to allow my children to have my support.

While have accepted that this inequity in our family law has cost me over a quarter of a million dollars, I am troubled to think how this system would work for a father who does not have the means to pay the ransom to ensure his children receive the benefits of a fatherly touch. This is discrimination of two kinds. First, our system that consistently presumes that children are best served by a custodial mother discriminates against fathers who truly want to remain active in their children's development. Secondly, it discriminates against the father who cannot afford to pay the ransom that is necessary to circumvent the system as I was able to do.

A true story of the benefits that joint physical custody can bring the children:

Following my divorce, I moved into the neighborhood of my ex-wife in order to make it easier for my children to walk between our houses, ride the same school bus from each home and maintain the same friends and routines at each home. The children have alternated one-half of each week between my home and their mother's home for over a decade. This arrangement has allowed me and my ex-wife to form substantive parental bonds with the children and to maintain active roles in their lives. Many friends and neighbors have commented to me on how well the children have been raised and how happy they seem. I don't have a literal control group to compare my children to, but my own real-life study allows me to conclude that my children are doing as well socially and academically as any of their friends who have parents that remain married. It should not come as a surprise to anyone that an engaged father improves the chances of raising well-adjusted children. That is why a presumption of joint physical custody is in the very best interest of the children.

Engage the Disenfranchised:

The time has come to stop treating fathers as the presumed non-custodial parent. Although our law does not carry this presumption, the courts and processes used by the courts have evolved to make mothers the presumed custodial parent. This only increases the disenfranchisement of fathers and reduces the chances that a child will grow up to be well-adjusted. What can the harm be in inviting fathers to share in the responsibility and joy of raising their children as an equal with their children's mother? Certainly a court can proceed to overcome this presumption of joint physical custody where facts and circumstances warrant. There is a very real possibility that the extent of involvement from Minnesota's fathers in the upbringing of their children will increase

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substantially when the State finally recognizes their importance by adopting a law that acknowledges their equal standing with mothers.

-- Ralph Weinberger

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To: Joint Custody Study Group

I am writing in support of you passing the PRESUMPTIVE JOINT PHYSICAL CUSTODY bill. Having witnessed a family member – and a terrific father – go through an expensive and extended custody process only to have sole custody granted to the mother, I feel strongly that the state should start with a shared custody approach. The current system grants mothers sole custody 90% time, a statistic certainly not reflective of a fair and open evaluation process. An alternative approach could be to start with 50-50 shared custody, thereafter providing sole custody only in cases where a given parent is proven to be unfit. -- Eric Jackson

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I am a retired social worker. I have worked as a counselor with Lutheran Social Service and two mental health centers in Minnesota for over 35 years.

I strongly support presumptive joint physical joint custody. All men (persons) are equal before the law - or at least should be. Under the present system it appears that males are considered guilty unless proven innocent, and even then don't have equal rights.

With presumptive joint physical custody, the assumption is one of equality. The custody then gets to be worked out through mediation and cooperation.

Marriage, to be good, needs to be based on mutual respect and cooperation. When conditions are such that the marriage is to be dissolved, this, too, needs to be done with as much mutual respect and cooperation as possible. Where this is not present it is detrimental to the children.

Through shared custody, children have the most opportunity to grow up with a healthy self-concept and a positive identification with both mother and father. RetiredSanford C. Fuglestad, RetiredSocial Worker, LSS

__________________________________________________________________________________________________________________Please approve the bill for Presumptive Joint Physical Custody. Who is qualified to make a decision that will affect a child for the rest of their lives?

Parents brought their children into this world together. They have decided to divorce.Now the children are without what we call "family/home" through no fault of their

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own. The decision of what is going to happen to this family needs to be made with jointphysical custody for the parents. They children need the love and support of BOTH parents.

Shouldn't a father have the same right to be with his children, and provide love and care as themother? A father brings an emotional and physical love to a child that only a father can do.

Should a father be unjustly deprived of his children, and yet have to provide income to his ex-wife without strings attached? Why not each parent takes care of expenses for themselves and their children when they are with them? They did decide together to divorce and live separately, so that should put the same responsibility on each parent divorcing.

I am writing as a mother of two divorced sons. We could site many different examples of why fathers should have Presumptive Joint Physical Custody of their children. In each of our casesthey worked through a mediator and worked out property, assets, and custody of the children - in both cases they have joint physical custody of the children.

In many, many cases the fathers are doing a better job of child care. Our fathers - CAN, AND DO - as well in raising their children.

Let's give them that acknowledgement - approve the Presumptive Joint Physical Custody bill. Retired First Grade Teacher__________________________________________________________________________________________________________________

This is my testimony: My name is (grandmother) and I am in favor of changing Minnesota's custody laws in favor of the presumption of Joint Physical Custody.

I come from a broken home. At the age of 15 my parents were divorced. Although my three siblings and I were chose to live with our mother - we were all four grateful that we were allowed to have free access and contact without father whenever we choose to. The courts did not decide when or how often we could see our father - we did. And it worked, without government intervention to dictate or restrict access to either parent. I just want to add that our parents did not get along with each other; they fought like cats and dogs. I am no stranger to domestic abuse. I understand its impact. On week-ends our father would drink and mother would get mad and violent and they would fight, throw things and have knockdown, drag out, mother would call the police and have daddy locked up. The next day she would go down and withdraw the warrant. She was not really afraid of daddy but she told the police she was. After the divorce we could call daddy for rides or to just come and take us places or do things with him. He was even invited to come to our house for family dinners and for holidays & celebrations.

I believe this is what children need for parents to co-operate with each other for the sake of their children. Parents should not be allowed and encouraged to use their children to hurt one another, which is exactly what is happening when the courts assign one parent as sole custodian. I also believe that when one parent insists on sole custody they are inflicting abuse on their child/children themselves. Children are a little of both parents and therefore, when one parent is devalued, one half of them is being devalued and this compromises who they are and their self esteem, affecting them for a lifetime.

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Each time there is a divorce it not only effects the two people who are divorcing and their child/children but all the family members - grandparents (such as myself and my husband-we have not been allowed to see our granddaughter for three years. Before the divorce we saw her weekly and we were the only ones allowed to sit with her and she went on many vacations with us), Aunts, Uncles, cousins, friends and friends of the family are all affected. Anyone who would not take sides with the mother of our granddaughter has been alienated from her (our granddaughter's) life. Our granddaughter has actually been turned against us, to the point that when we tried to go to a volleyball tournament to watch her play, she came over to us and asked us to leave.

We had not made any kind of contact with her; we were just sitting in the audience watching the game.

When we got home there was a telephone message from our ex-daughter-in-law telling us we had caused our granddaughter to lose the game for her team and that if we ever did this again (go to watch her) she (our ex-daughter-in-law)would file for an Order for Protection from us. We know in family court an OFP is far too easy to get, even with no valid reason or evidence, which only serves to further alienate the children from family who love them.

Currently my husband and I are actively involved in the "Center for Parental Responsibility" (CPR) and working to see the laws of MN changed to a presumption of Joint Physical Custody unless one parent is proven unfit.

We do not want to see other children and their families go through this pain and suffering caused by the current policies and practices in family court, which minimize and marginalize not only fathers, but one entire set of family. I believe from my own experience that this law passing is in the best interest of our children. All Children.

Thank you for your help and attention to this urgent matter and let's bring this to pass.

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Hello,I am a 33 year old woman married to a wonderful man that has 2 daughters. My husband has full legal and no physical custody of his kids. He and the girls' mom were not married. So after they split up (she moved out on him to move in with a man that she had been cheating with for over 6 months) she threatened that he would only see his kids every other weekend and be paying her a lot of money in child support. Unfortunately, after he petitioned the court for custody, and has spent thousands of dollars in court trying to gain joint custody that is pretty much what has happened. His original attorney on the case told him "the law says the mom will get full custody, so you might as well just give up". So he pretty much did. Until he met me and I gave him the courage (and financial support) to fight for what his daughters want and deserve. Again, after spending thousands of dollars on attorney’s fees, he only gets to see his kids 2 afternoons a week and every other weekend. It is SO sad because his daughters ask every time they're here to stay longer or not have to go back to their mom. We call every time to ask their mom, and get yelled at screams- NO. We've paid for mediation and she won't budge. I'm convinced that she is afraid to allow her

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daughters to spend more time with their father because she is afraid she'll lose out on her child support (which is her only source of income).

There absolutely needs to be changes in the legislation to allow fathers to have Joint Custody- if that is what the children need and deserve. We need to make a change so more children do not have to be "forced" to live with their mom- because that is what the law says.Please- let me know if there is ANYTHING I can do to help this change be made!!!!

-- Tonya Fuller__________________________________________________________________________________________________________________

A congregation member approached us as her pastors and asked us to write in support of a presumptive joint custody policy. She is a grandmother who is grieving the fact that her son does not have equal access to his children after his divorce. While we understand that custody issues involve many aspects that need to be taken into consideration, including the safety of the child, instances of domestic violence, and the overall fitness of the parent we also see the pain of extended family members who are deeply affected by a loss of relationship with children as a result of divorce and a non-custodial parent. We ask that you would consider the implications on extended family members as well when you study whether or not presumptive joint physical custody should be awarded. We will pray for your group as you work on this very important study.

In Christ,

Rev. Rev. Timothy EhlingRev. Kathryn SkoglundTrinity Lutheran Church220 South 13th StMontevideo, MN 56265

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1. I believe that there should be a change in Minnesota's custody laws to favor joint physical custody. Particularly with the new child support guidelines focusing on parenting time percentages, allowing parents to claim "joint custody" of their child(ren) makes sense, and can be a psychological aide to getting custody matters resolved. In conjunction with this, I would also eliminate the concept of "joint legal custody," which is already essentially useless and confusing - the term is not adequately defined so as to be meaningful, and other aspects of Minnesota law deal with (a) which parent makes the final decisions regarding school, medical care, etc.; and (b) both parents having access to school, medical, law enforcement, etc., records of a minor child.

2. As stated above, I believe that joint physical custody would greatly assist in resolving custody matters, since the child support guidelines deals with parenting time percentages, not labels. Further, I believe that this is meaningful to minor children to know that their parents are still "sharing" them, instead of being in the custody of one parent and "visiting" the other.

Matthew P. FranzeseLeuthner Law Office__________________________________________________________________________________________________________________

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I don’t have a lot of experience in cases like this (and I have to miss this month’s CJI meeting because of CMCC training) but I think I would be in favor. Right now the mother has automatic rights from birth and the father has to fight through a lot of red tape for his right. I know plenty of children born out of wedlock who would be better off with their dad, but the law currently only recognizes the mother.

– Kameron Genz, Social Worker

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As an educator with over thirty years experience working with young children and parents, I am writing to endorse a change to Minnesota's custody laws to favor a presumption of joint physical custody. I have three reasons why I believe such a change would improve the lives of children, families, communities, and society at large.

1. There is overwhelming evidence that father absence is harmful to children and extremely expensive for society (see The One Hundred Billion Dollar Man, Nock and Einhoff, National Fatherhood Initiative, 2008). The corollary to the downside of father absence is that children who have involved fathers do very well on measures of schooling, employment, and social relationships. We need to be doing everything we can to discourage father absence and encourage the healthy involvement of men in children's lives.

2. A large part of the the problem of father absence is that when parents split up, the courts' de facto decision regarding child custody is to presume that children are better off with one primary parent, and that parent is almost always the child's mother. This judicial decision encourages father absence in the lives of their children.

3. Changing Minnesota's laws to a presumption of joint physical custody is no panacea for children and families, but it is a small and important step in allowing for more positive father involvement. In order to substantially improve father child relationships through the court system, additional resources should be allocated. Two areas that come to mind are the lack of training and support for guardian ad litems, and the lack of professional standards in child custody evaluations. There is much work to be done in order to make social service and court systems more father friendly.

I sincerely hope the Joint Custody Study Group will do the right thing by advocating for a change in our laws to favor a presumption of joint physical custody. Children, families, and society will be the beneficiaries of such a decision.

From: --Lowell Johnson

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ATTN; JOINT CUSTODY STUDY GROUP:

IT HAS BEEN BROUGHT TO OUR ATTENTION THAT JOINT CUSTODY HAS A DISCRIMINATION PROBLEM AGAINST FATHERS. PRESENTLY, FATHERS HAVE LITTLE OR UNEQUAL VISITATION TIME FOR THEIR CHILDREN. THIS TIME SHOULD BE EQUALIZED.

COMPARATIVE TIME SHOULD AND CAN BE EQUALIZED. I REALIZE THAT FATHER'S WITH CRIMINAL RECORDS OR ABUSIVE BACKGROUNDS VISITS SHOULD BE CURTAILED. HOWEVER, THE OTHER FATHERS SHOULD NOT BE PUNISHED BECAUSE OF THE IMPROPER ACTS OF THOSE PREVIOUSLY MENTIONED.

WE STRONGLY SUPPORT EQUAL VISITATION RIGHTS FOR FATHERS & MOTHERS.

THANKS YOU FOR YOUR CONSIDERATION.

--DARRELL & MARGARET HANNEMANN

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Attention: Joint Custody Study Group

Please support the PRESUMPTIVE JOINT PHYSICAL CUSTODY bill and return justice to families - children, fathers and mothers. The present system is biased and antiquated. Criminals warrant due process of the law. So unless a parent has been proven to be a criminal, should the rights of parenthood be taken away? Should officials be held accountable for wrong decisions?

Please, remove political and governmental strings from the lives of children and fathers. Fathers and children have been victims of the discrimination of Minnesota courts for too many years. Too many MN fathers have been reduced to "visitor" and deprived of the very meaning of the word father.

As a grandfather, I yearn for more time with my three grandsons of divorce and my son and his sons deserve you support of the PRESUMPTIVE JOINT CUSTODY bill.

Sincerely,

David W. Stageberg, retired educator

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I am writing as a married mother of two sons (20 and 18). In the last few years, my brother in law from Wisconsin and a male friend of ours from Minnesota went through divorces. It makes me very concerned about the future of my boys – the laws in Minnesota really scare me. I don't know if it would ever hold up in court, but if my boys get married and live in Minnesota, I will suggest they write a pre-nuptial agreement about the custody of their future children in case they ever get divorced. We learned a lot about the court system in Minnesota during our friends divorce process and are very disgruntled with the statistics.

For convenience, I will call my brother in law, WI , and our friend, MN. Both divorces were very similar. They both had very controlling spouse who knew how to work the system. The only blessing for WI is that he lived in a state that presumes joint custody. Because his ex-wife had no other choice in trying to get more time with the children, she tried to convince the custody

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evaluator that he was abusive and an alcoholic. Even though it was a very ugly divorce, he still ended up getting his boys half the time.

MN on the other hand had a wife who was very intelligent. She knew if she could show the custody evaluator and guardian ad litem that she and MN couldn’t get along well enough to share the kids, odds were very high she would get custody because of our Minnesota divorce laws (I think I saw a statistic that said 95% of the time the women get custody). She coached the children and told them what to say to the guardian. She made up stories of how unsafe the father was.

After spending a lot of time with the boys, the guardian’s final report said they should share the kids 50/50, but the mother should have custody. The custody evaluator, on the other hand, believed all the stories the mother made up so MN’s attorney said they better settle out of court as the judge will listen to the custody evaluator. In the end, he sees his 3 boys every other weekend and 1 night a week. During a 7 day stretch every other week, he sees them for 3 hours on Wednesday night (when they are scheduled to go to church and now the oldest had guitars lessons – which were purposely scheduled during Dad’s time by Mom). So during his 3 hours that week, all he does is transport them to their activities. She purposely gave him Wednesday night visitation as she knew it would limit the time with their dad. The boys continually ask to see their father more and ask why they can’t live with him every other week. Shouldn’t it be about the children?

MN is a wonderful father and spends a lot of time mentoring our 2 boys. He is so lonely and upset about not being able to spend time with and mentor his own sons. The system is broken and needs to be fixed. How would you feel if MN was your son?

--Maribeth

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Attention : Joint Custody Study Group:

Both father and children have a constitutional right to have equal access which would be possible by way of presumptive joint physical custody. Fathers and mothers should be innocent until proven guilty of criminal activity.

It is a travesty that fathers get sole physical custody in only about 8% of custodial cases and then neither fathers nor their children have earned the discrimination of the divorce industry. Children that loose contact with their fathers will have a more difficult time adjusting as they do not have a good frame of reference for their own identify and this puts them in a constant search for meaning and understanding for their futures.

As the grandparent of three grandchildren of divorce. I am aware of the problems of divorce for them and their father. The father pays his child support and all other incidental expenses. The divorce decree states the father and mother are to pay half of the dental, medical expenses and school fees. Mother doesn't pay her share and "says she doesn't have to pay." A father should not be deprived unjustly of his children and yet provide income without any accountability. I know fathers deprived of their children and such a large percentage of their income they are reduced to poverty.

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Too many officials, political powers and government controls add to the problems of family. Please rescue children and fathers from exploitation by the divorce industry and pass the PRESUMPTIVE JOINT PHYSICAL CUSTODY bill.

__________________________________________________________________________________________________________________

Minnesota laws should be changed to favor the presumption of joint physical custody.

Much has been written about not favoring joint physical custody in cases of domestic violence. As a woman who endured years of domestic violence from my former husband, I disagree.

The problem with the current law is it encourages men and women to fabricate domestic violence against the other parent as a way to influence or obtain sole custody. The current law encourages parents to lie and falsify information. Courts are left trying to decide which parent is lying less. Courts are also left trying to determine which of the two parents is more likely to protect the best interests of the couple's minor children despite lying about domestic violence.

To further complicate the issue for Minnesota Courts, family law judges rely upon custody evaluators, Guardians ad Litem, parenting consultants, parenting time expeditors, court-appointed psychologists, chemical assessors, and children's therapists to determine which parent abused the other. These experts are not trained in domestic violence or questioning procedures to obtain truthful information on which the Court may rely.

In my own case, the man who abused me for years gained sole custody of our two minor children by claiming that I abused him and obtaining an Order for Protection (OFP) against me. The court services professionals all believed him that I was bipolar and abused him by refusing to take psychosomatic medication. I was a stay-at-home mother at the time. However, our two children, ages 3 and 6, were taken away from their mother and left in the sole care, custody, and control of the man who abused me mentally, emotionally, and physically for over 20 years.

Minnesota's family law system of justice is broken. The presumption of joint custody would improve the family court system. Women who allege domestic violence would not automatically lose custody which is what happened to me. Men who falsify claims of domestic violence would not automatically be granted custody which is what happened to my former husband.

The problem is the Courts are not examining what is best for children by talking to the children. The courts rely on people not trained in the law, not trained in evidence, not trained in civil procedure, and not trained in domestic violence to determine which parent is lying or the lesser of two evils.

Judges know what intent is and how to determine intent from criminal law. The same methods for finding intent in criminal cases should be applied in family law cases involving claims of domestic violence by either husbands or wives. Courts need to make judicial findings of intent by husbands and wives whenever allegations of domestic violence are raised.

Feel free to call or e-mail if you need any further information.

Sincerely,

Susan A. Yager

Attorney at Law

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This email is my comment regarding "joint physical custody" presumption as your study group considers the question.

I used to be opposed to presumptions of joint custody. I always felt that absent an agreement between the parents, joint physical custody was likely to fail. I used to believe that children needed stability and a safe relationship with one parent, more than they needed a relationship with both parents. I am now more open to a presumption of joint physical custody. These are my reasons:

1. When I was still a state senator, I chief authored the current "income shares" child support law. It took 3 years and several re-drafts to finally pass the law. During the process, I came to believe that the family law system was unfair toward fathers with respect to determining their future relationships with the kids. There was a common belief that fathers only wished to have custody of their kids because it would lower their child support. Indeed, under the old "Hortis-Valento" formula the amount of custody did determine the child support owed. I'm sure that that was the motivation for many fathers to request custody. Many threatened to litigate physical custody in order to leverage lower child support payments. When the current child support law was passed in 2006, it included a presumption that each parent was entitle to 25% of the total parenting time. This was significant since 25% was quite a bit more time than the normal "every-other weekend and two weeks in the summer" which was quite normal for non-custodial parents to receive for visitation. Current law, in MS 518.175 Subd 1 (e) states:

(e) In the absence of other evidence, there is a rebuttable presumption that a parent is entitled to receive at least 25 percent of the parenting time for the child . For purposes of this paragraph, the percentage of parenting time may be determined by calculating the number of overnights that a child spends with a parent or by using a method other than overnights if the parent has significant time periods on separate days when the child is in the parent's physical custody but does not stay overnight. The court may consider the age of the child in determining whether a child is with a parent for a significant period of time.

The above language was a compromise from the House of Representatives' position (passed by the entire House I believe) that there should be a 50% presumption. When I negotiated with some of the groups advocating for the 50% presumption, and told them that I couldn't negotiate a child support bill in the Senate which gave a parenting time based reduction in child support and a presumption for equal parenting time, They told me that fathers wanted TIME with their kids more than they wanted a child support formula which resulted in lower child support payments. That message came though clearly from the hundreds of phone calls that my Senate office received from fathers while the bill moved thru committee. I am now convinced that most fathers want a presumption of equal parenting time because they want a more meaningful relationship with their kids.

2. Since the 25% parenting time presumption took effect ( On Jan.1,2007) I haven't heard of an increase in litigation regarding custody or parenting time. Therefore, the current presumption must be working. I believe that each parent's expectations will conform to whatever the law allows. What consequences might occur if a greater presumption of parenting time was passed into law (say between 40 and 50%)?

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a. Currently, there is no effect on child support obligations if the non-custodial parent has between 10 and 45.0 % of the parenting time. (45.1% is considered "equal" time under the law) Therefore, the 25% parenting time presumption that currently exists could be increased to 45.0 % without affecting the amount of child support paid by the "non-custodial" parent. This would give dads (non-custodial parents) more time with their kids, but might be unfair to them financially. Currently, if the non-custodial parent has 40% of the parenting time, they still only get a 12% reduction in child support to cover expenses for when the kids are with them. The 12% discount allowed in current law was also a legislative compromise. It should have been closer to 18% based upon the financial analysis. Most states give substantially more "parenting time discounts". Our child support is modeled after Oregon's law. In Oregon, there are 8 or 9 levels of parenting time discounts, based upon the amount of time a parent has with the children. We created the single parenting time (expense) discount for parenting time between 10-45% , hoping that there would be less "fighting" and litigation about custody and parenting time. Mothers were encouraged to allow increased parenting time to non-custodial fathers because it wouldn't reduce child support. The new law also eliminated the distinction between "custody", "visitation" and "parenting time" (see MS 518A.36 below) and eliminated the Hortis-Valento rule prospectively. I believe that the new law is working, and reducing litigation, in that regard.

518A.36. Parenting expense adjustment Subdivision 1. General. (a) The parenting expense adjustment under this section reflects the presumption that while exercising parenting time, a parent is responsible for and incurs costs of caring for the child, including, but not limited to, food, transportation, recreation, and household expenses. Every child support order shall specify the percentage of parenting time granted to or presumed for each parent. For purposes of this section, the percentage of parenting time means the percentage of time a child is scheduled to spend with the parent during a calendar year according to a court order. Parenting time includes time with the child whether it is designated as visitation, physical custody, or parenting time. The percentage of parenting time may be determined by calculating the number of overnights that a child spends with a parent, or by using a method other than overnights if the parent has significant time periods on separate days where the child is in the parent's physical custody and under the direct care of the parent but does not stay overnight. The court may consider the age of the child in determining whether a child is with a parent for a significant period of time.

To be fair, the parenting time discount should be increased if the actual parenting time is increased because both households would incur basic "fixed" costs for housing, utilities, transportation, clothing, etc.

b. If the presumption was increased to between 45.1% to 50%, then the current child support law presumes a different formula. Generally, the parent with the higher income will pay 1.5 times the difference in guideline child support. This would be fair, but only if each parent actually cared for the kids equally. Sometimes, actual practice differs from what the decree states.

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3. My Opinion:

I support increasing the parenting time presumption to between 40-45.0 %. Each parent should be presumptively entitled to at least this amount of parenting time with their kids if all things are equal, regardless of whether the parents agree to a parenting plan. The parenting time discount should be increased from 12% to 30% if the amount of parenting time is between 30% and 45.0 %. ( the 12% discount would still apply to parenting time between 10 and 29.9%) This presumption would give more parenting time to the non-custodial parent who is truly sincere about having more time with their child. It would also increase the parenting time support discount to compensate the non-custodial parent for the "transitory" expenses which follow the kids (food, entertainment, travel, clothing, etc.) By establishing two tiers of "parenting expense" discount, the law would still discourage litigation, while increasing children's time with both parents.

One example of how 40% of parenting plan would be structured as follows:

a. Every-other weekend (Friday night to Monday morning ) = 78 nights

b. 43 days (about 1/2) of each summer vacation

c. Equally divide school year break and holiday time ( about 15 nights)

Total = 146 nights = 40% of the total parenting time

We should eliminate the distinction between the labels of "physical custody" and "parenting time". Labels in this area of the law are important. We have effectively eliminated the concept of "visitation" already and that is a good thing in my opinion. Parents don't "visit" their kids, they raise and care for them. Except for inter-state compact issues, the label of "physical custodian" is not necessary any longer. Each parent should receive "Parenting Time" with their kids in the future.

The 40% presumption could be rebutted by:

a. abandonment or prolonged neglect of the kids by a parent; b. abuse or domestic assault by one parent toward the other parent or the kids c. past criminal history d. significant non-payment of child support e. Parental incapacity or disability which affects the parent's ability to care for the children; f. incompatibility with step families g. preference of the child if age 12 or older h. significant differences regarding religion or educational upbringing

i. Other factors in courts discretion which affect the best interest of the children.

My proposal would not increase litigation and might even reduce it by reducing the marginal benefit of litigating over 5 to 10% more parenting time. Both parents would know that they won't be marginalized with respect to raising their kids. This proposal also allows flexibility for parents to craft parenting plans within the 30 to 45 % time frame.

Thanks for your consideration.

Judge Tom Neuville

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To: Joint Custody Study Committee in Minnesota (2 pgs.) November 7, 2009

Re: Joint Physical Custody Needs to be The Presumptive Standard in Minnesota

My son Max was born on October 23 ,2004. My fiancé decided to end our relationship and moved out of my home in September 2005, taking Max and her other son, at the time age 3, with her. She houses them in one bedroom / 800 square feet home.

Thus began my nightmare experience with the Minnesota (Carver County) “family court” system, in my attempt to simply be responsible for parenting my own son. I discovered that as an unmarried father, I had to file suit to gain joint legal custody and that the mother is given full physical custody “as a matter of course.

I was told by my $300/hr. family law attorney that the presumption was that physical custody goes to the mother “because the judges say ‘I ain’t never seen the calf (child) follow the bull (father)’”. While it is certainly true that a newborn needs the feeding and care from its mother, there is also no doubt that a child needs TWO parents in order to have the best chance to succeed and be happy. All statistics and studies bear that out.

Instead, the “family court” in Carver County has pitted my son’s mother against me by immediately intervening in my parenting rights motion, for child support (Judge ) despite the mother’s gainful employment and salary of $85,000 ( I make a $60,000 base salary). I have spent $15,000 on two different attorneys just to establish my parenting rights and a parenting plan, and to contest over-collection of support by Carver County (up to 50% of my net pay at one time, and there are “no refunds”!).

This has resulted in setting forth the typical and not sufficient every other weekend and one midweek evening with my son (now four years old) which the mother views as my “privilege”, to be controlled and granted or denied at her whim. If I protest, she will claim “harassment” or “ abuse” – the ultimate weapon for women in “family court”.

This, of course leads to more court involvement as I currently try to seek redress for her willful denial of parenting time and her unwillingness to contribute to my son’s transportation for the parenting time. This is extremely negative financially.

As a fit and loving father, I can provide the love, structure, discipline and support that only a father can provide – yet the State assumes my function to be limited to just (4) weekend days and four midweek evenings per month, for which I am asked to PAY the mother!

In addition, my parents (married 53 years), are deprived of spending time with their grandson, as are my siblings and their children (my nieces and nephews) with their nephew / cousin. All because of the State’s terribly WRONG presumption for the mother’s physical custody, which is unconstitutional under the equal protection laws.

I believe when both parents are fit and loving, the child deserves, and society is better served, when they are EQUALLY present in a JOINT PHYSICAL CUSTODY.

There are other issues relevant to this consideration:20


No-fault divorce: This law allows women to leave a marriage for any reason, whether the husband wants to split or not, and by virtue of the present presumption for mother’s sole physical custody, be virtually assured of not only custody of the children, but an immediate payday in the form of child and spousal support. This law has done more to destroy the fabric of families and, therefore our society, than any other.

Statistics show that women leave marriages and relationships in greater number than men – for reasons such as “feeling unloved” or “unfulfilled”. This puts a lie to the old saw that men “abandon” their families for trophy wives, etc.

No longer are the support and custody laws being implemented against the largely minority, inner city clientele of the low wage or unemployed, the often absent fathers. The middle class of employed and fit parents is increasingly being terribly disserved (abused) by these ill-fitting “policies”.

The divorce “industry”: This is a terrible and insidious outgrowth of the “family court” system, which is set up to profit by pitting parents against each other, and taking kids away from fit, willing, loving fathers. It includes a growing number of parenting “expeditors”, guardians, psychological consultants, etc. All needing to be paid by people (fathers) just wanting to parent their child(ren), which is a fundamental liberty under our Constitution. Yet this system operates with no oversight, and only those trapped in it can understand the true vileness of it.

The radical feminist agenda and the liberal bar association wants this system to remain largely unexamined (by its cohorts in the liberal mainstream media) and to grow, assuring continued employment for its many members, and to further it’s (negative) influence on the society. This includes the resulting systemic devaluation of the father in our society, relegating him to a source of funding for their terrible machine and for the women (mother’s) who profit from it. Even in the face of the terrible statistics for children who grow up in single parent (mother) households – crime, chemical abuse, etc. We need reform!

Standards for “fit” parenting: It is virtually impossible (standard of proof) for a father to gain custody of his child(ren) by alleging an unfit mother, yet the court presently ASSUMES the father is essentially “unfit” by awarding sole physical custody to mothers 95% of the time. This is a terrible and unfair supposition by the court which is demonstrably negative to the best interests of children.

I urge the legislature to immediately reform the law, with a standard of joint physical custody, unless the parents mutually agree OTHERWISE, or are proven to be unfit.

-- Brian Maginnis

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1) Presumption of joint physical custody: yes, this should be considered.

2) Pros & Cons:

Pros:

1) Gives the child access to more equal parenting by each parent.

2) allows more permanency and stability in the child's life.

3) allows more involvement of both parents in medical and education information and decisions.

Cons:

1) could cause more parental fighting, arguing and control by one or by both.

-- Alice Snater

GAL

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We write imploring you to consider justice, act wisely and vote favorably; please pass the PRESUMPTIVE JOINT PHYSICAL CUSTODY bill.

Statistics clearly bear out the fact that fathers experience discrimination in child custody cases. In over 90% of the custodial cases mothers are granted sole custody.

Research has documented time and again that the detrimental effect of divorce on children is exacerbated when one parent is removed or marginalized from the children's lives. Our nephew, the father of 3 sons,has only limited visitation rights in spite of the fact that he was an able, primary care-giver of his sons before divorce . His children, as well as he, long to see this changed so they can have equal time together.

It is hard for us to believe that fathers can be deprived of their children, their home and their salary without any constitutional protection. Who in the name of law and government is qualified to recommend taking a child from his or her loving father? Minnesota needs to change how they settle custody cases; fathers and mothers should have equal time with their children. After living in Minnesota for 60 years, we now live in Wisconsin where mothers and fathers get 50-50 in custody cases and it works well.

Please pass the PRESUMPTIVE JOINT PHYSICAL CUSTODY bill.

-- Carolyn & Richard Jackson

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As grandparents and parents of a divorced son, we know the bias of the court system. The judge, lawyers, custody investigator etc. are all on the same team to discredit the father and favor the mother. It's not what is best for the child but about monetary rewards for "the team" and the state. Please address this with honor, truthfulness, and justice and support the Presumptive Joint Custody bill. Thank you.

-- Philip and Florine Iverslie

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Written testimony to Joint Physical Custody Study Group

Submitted by Charlie Hurd representing the National Coalition of Free Men Twin Cities Chapter. November 6, 2008

I am a retired K12 Library Media Technology teacher, and a city councilmember from Mankato. The National Coalition of Free Men is the largest nationwide organization devoted to men’s issues such as discrimination against men in the military draft, education, health care, family law, and at domestic abuse shelters. We recently won a case against the state of California to make domestic abuse services available to men as well as women. Unfortunately, this type of discrimination continues in Minnesota.

I would like to tell my own story of shared parenting. In 2002, I separated from my wife of nearly 10 years, and we began to practice shared parenting with our son, who was eight at the time. Our divorce proceedings took more than two years and were very expensive, bitter and stressful. Contentious issues during the divorce process included, child custody, child health care, child discipline and upbringing, religion, child support, and the division of marital and premarital assets.Early on, I encouraged shared parenting, because I knew it was what my son wanted. However, each parent considered going for sole custody at some point in the process. Ultimately we both realized that this was a waste of time and money, and that the sole custody determination process would do damage to both of us and our son. Looking back, I only wish that there had been a presumption of 50/50 shared physical custody and shared parenting, so we both could have avoided the stress and expense involved in considering sole custody.

It is unfortunate that the current system encourages sole custody and does so little to encourage shared parenting agreements. There are huge economic and social incentives for one parent to go for sole custody. Imagine that you can get the children and a financial payout that can last for the next 20 years. It’s hard for even the most principled person to resist this temptation. One parent can easily veto shared parenting under current law. And what lawyer would discourage a client from going for sole custody if there was a reasonable chance of getting it?

In spite of the incentives to go for sole custody, we chose to mediate and create a shared parenting plan, because it was the best option for all of us in the long run. Most of our shared parenting plan is common sense, if your common sense puts the child first and is based on fairness to all. Here are some of the details of our shared parenting plan.

Time SharingWe chose every other week, with one day in the middle of the week with the other parent. We now

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share a week at a time, at our son’s request. Holidays are switched back and forth every year, unless you agree to always have a certain holidays.

Medical IssuesExcept for emergency situations, medical decisions are made together.

Health InsuranceOne of us carries it, the other parent contributes half of the cost.

SchoolOur son continued in the same school. He has kept his school friends and familiar school.

ExpensesEach parent maintains a household and covers all expenses while the child lives in the household. Anything that goes back and forth between houses is a shared expense. These include for example, musical instruments, clothing, sports expenses, community education classes, and school supplies. Shared expenses are equalized between parents every two months.

Child SupportThere is none.

TransportationThe parent who has the child, delivers the child to the other parent when it is time to switch.

DisagreementsWe use a step-by-step process that begins with discussion, goes through to mediation and finally the court if necessary. Once our original agreement was finalized, we have never even gone to the mediation step.

In summary, our shared parenting plan has worked out well for all of us in spite of a very contentious divorce process. My ex has used the extra time that she now has, to socialize more, get more education and work more at her business. She is economically independent and is not burdened with child support. I’ve had more spare time, and have used that time to become an elected official. I’m not burdened by child support, and I get to spend quality time with my son a week at a time.

My son is now a freshman in high school. He has several friends, gets good grades, has a good relationship with both parents and participates in several extra-curricular activities. There is no cost of involvement by the government in our families, just as it was before we were divorced.

The National Coalition of Free Men is very concerned about the bias of this study group against a presumption of joint physical custody. From our analysis of the group members, and the organizations that they represent, it is clear that most of you benefit from the adversarial nature of our current system. Lawyers and judges, the five of you, would see less work and monetary gain if we adopted shared parenting. Domestic abuse advocates would have less to do if we had a system that encouraged cooperation, rather than conflict and denigration of one parent. It’s odd that four members have close connections to the domestic abuse cause, when Representative Mahoney points out that domestic abuse is not a concern of this study or the law? Psychologists and

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academics would have less to study and advocate for if there were less conflict and less cases for which to testify. Child support collection bureaucracies would definitely be shrinking, rather than growing if the government were kept out of the business of income redistribution. There also seems to be a heavy concentration of members who deal with families in poverty, rather than average families.

If this study group was to be fair, why don’t you have an independent economist, rather than a child support collection bureaucrat? Why aren’t there any collaborative law experts or mediation experts in the group? I know that several of the study group members are actively against shared parenting. Shouldn’t there be at least one academic representative and one lawyer who is an advocate for shared parenting? Why wasn’t there any oral expert testimony from academic experts, lawyers and judges who are in favor of joint physical custody? I counted at least eight who testified in opposition on October 27 at the Judicial Center. Why are only studies in opposition to joint physical custody sent out electronically to group members before meetings. Why aren’t there any legislators in the study group, so there can be someone in the group who actually represents and protects the average people of Minnesota?

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To Whom it may concern,

Listed below is a letter that provides my point of view and case history for the joint custody legislation being considered.I strongly believe that a presumption of joint custody for two fit parents with approximately equal parenting time is in the best interests of the children.I also strongly believe that the MN family court process is seriously broken and needs to be replaced with one that puts the interests of the children and parents before the lawyers,case workers and judges.

My testimony will reflect the impact on the best interests of the children and the financial impact of adopting joint physical custody. A summary of my testimony is listed below:

Minnesota's current law favoring sole physical custody to one parent( where both parents are presumed fit) is blatantly against all common sense and the best interests of the children.Study after study shows that children of divorce are best off when both parents are actively involved in the upbringing of their children. Minnesota's current laws are similar to the "Separate but Equal" doctrine of the 1950's.On the surface it appeared lawful and non discriminating but in actual practice the "Separate But Equal " doctrine and today's Minnesota presumption for sole physical custody have led to wide scale discrimination.

Judges in Minnesota have far too much discretionary power to choose winners and losers in family courts. Many Judges are not family law experts and view family law as a nuisance and not worthy of their time.Once adversarial lawyers and Judges are involved the damage to the children and to the family finances far outweigh any benefits. Judge Bruce Petersen (the highest ranking Judge in Hennepin family court ) agrees that the Minnesota family court system is broken and causes much more damage to families.

I am of a father of 3 children divorced in 2006 after a lengthy 2 year custody battle. The custody evaluator recommended that I be granted sole physical and sole legal custody of our 3 children with approximate equal parenting time. Despite this the Judge granted the children's Mom sole physical and joint legal and awarded Mom 75% of the parenting time. The MN appeals court denied my

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motion for reversal saying it was in the Judge's discretion. A Parenting Consultant was appointed with the full authority of the court and after many months of meetings with both parents and thousands of dollars, increased my parenting time to 42%.My ex wife continued to deny both court and parenting consultant ordered time. Two subsequent motions were presented to the same Judge providing the Parenting Consultant's very descriptive letters showing my ex wife was denying parenting time and failing to abide by the PC's directives. The Judge denied both motions without hearing any evidence stating "I am not wasting the Court's time on these issues”. The Parenting Consultant has recently quit ( because the Judge refused to do anything) and the children and our family are in chaos. The two experts (Custody Evaluator and Parenting Consultant ) who spent many countless hours with both the parents and the children agreed that approximate equal time was best for the children. The Judge who spent no time with the children and almost zero time with the parents continues to believe he knows more than the experts.

Since the separation date on August 20,2004 we have spent over $250,000 on attorney fees. Both sides are as committed as ever to protect their rights to be parents to our children. Our oldest child starts college next fall and despite her being an honor roll student there is no money to support her in college because of the countless battles in court. Our youngest child is 9 and the motions and attorney fees will likely continue until she is 18 and even longer due to the Judges inability to provide a fair solution.

I am a loving Dad who adores my 3 children. I am remarried and am a great father to all 5 of our children. I have an MBA from the University of MN, I coach my children’s sports teams and stay active with the children’s school, religious and health needs. We live less than 1 mile from ex wife 's house and the kids easily move back and forth between houses and enjoy the friendships of their step siblings.

Our children's future and our lives have been ruined by one 64 year old Judge in Carver County who believes he knows more than the experts he's appointed. This Judge presumably was following the current law that says one parent is the winner. A presumption of Joint Physical Custody would have eliminated 90% of our family court hearings and motions and allowed both my ex wife and I and our children to move on with our lives and provide for the future education of our children.

-- Richard Shea

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I am a family law practitioner and have been since 1994. I am in support of a presumption of joint physical custody for many reasons. The research that I have read regarding the effect it has on children to have a fractured relationship with one parent illustrates quite strongly that it is bad for children. When parents want to raise their children and are prevented from doing so by being given a modest 4 overnights and 4 weeknight evenings per month as the antiquated schedule of every other weekend brings, it negatively impacts a child's relationship with his or her noncustodial parent.

Although it has been widely believed that somehow joint physical custody requires more cooperation than sole physical custody, I think that belief is suspect on its face. Parents who feel excluded, out of the loop, or unfairly treated by the system are more likely to be antagonistic with

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the other parent. Joint physical custody would relieve that source of conflict. Also, people that are in conflict are in conflict. Their parenting time schedule does not change that.

Children that are from broken homes have been dealt a bad blow. The answer is not to marginalize one of their parents in the name of "stability and consistency". This position has always confounded me. It defies common sense. When children are accustomed to living with two parents, they see each other every day. Stability and consistency would be keeping the children in contact with both people they have been living with all their lives as much as possible. Instead we have taken one of the people they are used to seeing every day and imposed a visit for only 8 days each month, and in those counties where they still don't even grant midweek overnights, four of those days are really just a few hours in duration.

I have not read any proposals on language, but I would suggest that the presumption be made based upon people living together for some period of time during the child's life and not on marital status. Children don't get to choose whether their parents marry. They don't see a difference when their parents live together whether they are married or not. In other words, I do not think we should treat paternity cases differently than marriage dissolution cases. We should treat people differently based upon what the child has experienced in his or her daily life. Making this change would be a huge step in the system being more child focused, which is where it ought to be.

I could go on and on. I also know there is judicial economy to consider and this may have a positive impact on that. However, I think the primary reason to do so is for children.

-- Linda Allen

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There should be a presumption of joint physical custody in Minnesota Statutes.

Any other presumption promotes acrimony between parents and needlessly extends legal battles for custody. Any presumption could be rebutted with arguments of the existence of domestic abuse or that the best interests of children dictate other than joint custody (similar to the current presumption of joint legal custody).

The existing framework is confusing to parties who are good parents and adept at co-parenting. They frequently wonder why they need to prove their fitness as a parent when it has never been questioned in the past.

-- Richard A. Stebbins Attorney

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I am writing to express my views on the proposed presumption of joint physical custody. By way of background, I have been a practicing family law attorney for nineteen years, eleven in private practice and eight working in the child support system. During those nineteen years, I have represented moms, dads, and the public authority and, occasionally, a grandparent or other interested third party. I am also a child of divorced parents.

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I have come to believe that it is in the best interests of children to begin with a rebuttable presumption of joint physical custody. I believe that there is still a win/lose mentality with regard to custody labels and that mentality is fostered by the defacto presumption against joint custody in our current law. (Technically, there is no presumption, but a party wishing to be awarded joint physical custody has additional burdens with regard to proof such as presenting evidence that the parties can get along....) What I see in the present law is an incentive for some parents to create conflict and then argue to the court that the parents can’t get along so joint custody should not be ordered. I believe that a presumption in favor of joint physical custody benefits children as it assumes the positive—that parents can and will work together for the sake of the child—as opposed to assuming the negative unless a party can show otherwise.

I have found that parents with joint labels seem to have fewer post-decree issues, though, to be fair, I have not kept hard data on this issue.

I would suggest that the presumption be a rebuttable presumption, and that the presumption could be rebutted based on some of the following criteria:

The parents had never resided together. (I think children of divorcing parents who have lived together and raised the children together are in a very different situation than a child of a one-night stand for example);

There has been significant (as opposed to one-time situational) domestic violence between the parents;

A parent has significant chemical or mental health issues that make sharing responsibility inappropriate; or,

The parents simply cannot agree on anything and have no history of ever working together well for the children. (Note—the legislation would have to be crafted in a way so as not to motivate a party to behave badly)

I understand that there is a perception that divorced parents cannot co-parent well, but I have seen hundreds of cases that disprove that fact. To be fair, as a family law litigator, I have also seen hundreds of cases that show some parents can’t get along no matter what. I think that we either have to assume the worst, unless a party can prove the best, or assume the best unless a party proves the worst. I believe that children’s interests are served by creating an expectation in the law that the parents will co-parent. As a parent myself, I find that children tend to live up or down to our expectations of them. I think the same is true of most people, including family law litigants. I also believe that a presumption in favor of joint custody will serve to reduce litigation overall, though, to be fair, the cases that are tried if a presumption is created will likely be really tough, awful cases.

I hope this perspective is helpful. Thank you for seeking comments on this important topic.

Dana K. McKenzieAttorney at LawWolf, Rohr & McKenzie, P.A. __________________________________________________________________________________________________________________

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Dear Sir or Madam:

I believe the Legislature should change Minnesota custody laws to favor a presumption of joint physical custody when there are not issues of drugs, violence or alcoholism. If the parties cannot agree to joint physical custody, the courts should draw lots between the parents. Currently, the Minnesota Legislature has set custody policy using the standard of the “best interests of the child.” Unfortunately, the Minnesota judiciary has undermined this indeterminate standard for decision-making, to make this a policy that amounts to a presumption of physical custody for the mother. The unfortunate result of giving physical custody solely to the mother is that it causes children to lose respect for the father because the children soon learn the father doesn’t have much power to discipline them, and doesn’t have any control over his custodial relationship with them.

Very truly yours,

John P. Mazzitelli Attorney

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Written comments:

1. Should there be a change in Minnesota's custody laws to favor a presumption of joint physical custody? Yes, I believe it would be helpful.

2. Reasons: As a mediator for almost 14 years, and an additional 10 years in the court system, I have seen many heart wrenching arguments over sole physical versus joint because of fear of one parent having more control and the other parent being forced out of the life of a child, whether the fears are justified or not. I have also seen a great deal of manipulation factors created by the presumption of sole physical with one parent.

When parents are wrapped up in the legal aspects of who receives the sole physical terminology, while important, it is not as important as parents focusing on concerns, issues, and what makes sense in regards to parenting time. If there was the presumption, parents may have one less thing to argue about and clear the way to more productive problem solving.

The presumption of joint physical may have the effect of negating the negative effects the new child support guidelines have had on parenting time negotiations. The new child support guidelines, while excellent and much fairer, have created roadblocks in negotiating parenting time schedules. Again, if there was the presumption of joint physical, it may have the effect of helping parents focus on what is important, which is quality time with their children while capitalizing on as much quantity as working schedules will allow, in the best interests of their children rather than the one extra overnight that will tip the scale to 45.01%.

On the other hand, it may bring about less accountability with parents assuming an entitlement of a straight 50-50 in actual parenting time rather than parents focusing on maximizing time in the best interests of children, if one parent is more available than the other. A parenting schedule that makes the most sense may not be quantitative enough to reflect joint.

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However, I believe: (1) it will make it easier for parents to better negotiate parenting schedules that balance home life, work and play if the presumption is put into place, and (2) it will allow both parents to be treated equal in value in the lives of their children unless there are safety, drug or alcohol concerns.

I am hoping that the legislature will seriously consider the presumption.

Lois Warner, Mediation Works North __________________________________________________________________________________________________________________

Attention to: Joint Custody Study Group

It is time to return constitutional rights to fathers and children - and sometimes mother. It is a travesty that fathers get sole physical custody in only about 8% of custodial cases. Social workers and research tell us the prognosis for children of divorce is improved when there is presumptive joint physical custody and joint legal custody. Separation from a parent is an injustice to children. Too often fathers are allowed only a minimal or minor role in their children's lives. Accused criminals have the right to due process of the law, but fathers can be deprived of their children, home, and salaries without any constitutional protections. Incredible.

As the grandparent of three grandsons of divorce, I am well aware of the horrors of divorce for them and their father, and the paternal extended family. Recently, my ten year old grandson, during one of their three hour visits with Dad, remarked as they were rushing to get to Mom's house, "I told Mom, I do not understand why we can't spend half the time with you and half the time with Mom and you could keep your money and Mom could keep hers and we could visit between houses."

Mom responded, "It's just the way it is."

With the wisdom of a child the judicial system could and should be changed!

Please, pass the Presumptive Joint Physical Custody bill.

-- Phyllis Stageberg

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I am writing to offer a few comments regarding joint physical custody. In our jurisdiction, a Judge in District Court intermittently orders the parties in dissolution cases to work with the local social services agency to complete a custody study. I am a social worker employed by Aitkin County Health and Human Services, and over the past 11 years, those custody studies have usually been assigned to me.

I have noticed that, in the past, I was more likely to approach the issue of joint physical custody as the "third option." By that I mean that my recommendations for physical custody seemed to lean toward one parent or the other, and much effort was spent working out an appropriate schedule for parenting time for the non-custodial parent. Certainly, there are many cases where this is absolutely the best option for the children.

Over the years, however, my evaluation process has shifted toward making joint custody the "first option" if at all possible. In those situations where couples opt to end their marriage (and there is

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no evidence of domestic violence, child maltreatment, or active chemical abuse), I look for ways for both parents to equally and consistently share the joys and responsibilities of child rearing as often as possible. I begin my evaluation with the assumption that both parents have the desire and ability to provide appropriate parenting to their kids, and it usually becomes apparent in a short while if that is, or is not, the case.

When one parent is "awarded" physical custody of the children, it seems to reinforce the idea that the kids are possessions, and that they "belong" to one party or the other. Angry, and emotionally distraught individuals tend to use the kids as tools of manipulation, revenge or vindication, and it is just unfair! It is my frequent observation that kids just want to have access to both their parents, and some regularity about how that happens.

If parents know that joint custody is the presumption they may spend more energy thinking about how to make that work for them rather than placing so much focus about "winning" the custody battle. Parents might also be more willing to work out an acceptable arrangement between themselves prior to going to trial if they are aware of the joint custody presumption.

Children deserve better treatment than they normally get in divorce situations, and the custody evaluator may be the only independent voice calling out for what is in their best interest. I would support statutory language that would support the presumption of joint physical custody.

Thank you providing a platform for my thoughts. ---- Rae Zahn, Social Worker

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As a Sovereign Citizen of the state of Minnesota I am in contract, in fact compact, with the other Citizens of this state by virtue of our state constitution. My concerns are directly related to the members of the committee (and this state) being ignorant to the unalienable rights contained within unalienable Natural Law. This ignorance has brought us into a state of chaos in our families, our courts, state and country.

The “impacts” upon the People, that this committee is seeking to evaluate, are the symptoms and not the problem.

I am uniquely qualified to speak to this committee. My former name is Johnson, and I wrote the prevailing arguments in the Minnesota Court of Appeals and Supreme Court cases Johnson vs. Murray. This case deals with custody and parental rights. Justice Paul Anderson authored the opinion in the Minnesota Supreme court case, and I have had many discussions with Justice Anderson concerning the issues that this committee is considering. I will be sharing these discussions during my testimony.

Additionally, I have worked for nearly two decades in legislative intent research, assisted various non-profit organizations, personally brought children out of gangs and am currently a journalist and civil activist. As a victim of assault from my own father, and the failure of redress for those injuries I am as well qualified to address the concerns of domestic abuse.My hope is that the information that I will share with the committee, both orally and in writing, will give the committee the necessary tools to bring justice back to the People.

__________________________________________________________________________________________________________________

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It should be automatically granted for fathers who seek and want equal opportunity and visitation. Do they not have the basic inalienable rights- are we not all created equal- so why is it then that a mother is automatically granted sole physical custody? Even at the fathers protest? Too many times a mother (primary physical care giver) takes rights away "just because" bitter, anger etc. With Joint- unable to do so. Makes her responsible financially as well- child is 'half' hers so she should be supporting half as well! All responsibilities should be equally divided. If mother chooses NOT to work, then fathers should get automatic tax deduction regardless of since he and state are sole providers? or is on welfare system- father should not be carrying the burden for her choices, or inability. If she cannot provide for herself and is manipulating the system....Too many are taking advantage. Fathers become just a wallet. That is not fair!!!!

It took two to make the child it takes two to raise the child. PERIOD! When one parent or the other is denied basic rights on that parent’s belief that the other parent has no rights based on the 'primary care givers.' If mother drags to court for bogus she should be made to pay all fees, eyes...both parents held accountable for THEIR child. One parent should never be denied (unless violence type situations) especially when unsubstantiated claims- usually by a mother- Parental Alienation does exist. Fines should be stiffer and collected, awarded to the injured party. If penalties higher, would they not be less likely to perpetrate bogus denial of visitiation? If joint custody automatic- less likely for bogus denial visitation.

I can testify to alienation syndrome or whatever you want to call it. Parent using child as a weapon as if personal property. Wouldn't joint custody defray them from? Holding both parties accountable

for the child THEY made together? Not make the fathers pay through the nose while the mothers live off welfare? There has got to be a way for fathers to have their rights automatically and I think Joint Custody seems to be the way for those battling just to see their children fairly and equally without having to go to court all the time. Wasting tax payer’s dollars for violating simple civil rights, human rights because of gender biased courts? Hennepin county and Wright county are the worst or are all judges biased still? That only a mother can raise without the father? something that should be so simple for the majority. Especially if mother has physical disabilities, health issues- joint should be automatic, just in case?

I am writing on my husband's behalf about a vindictive, controlling, manipulative, narcissistic, hypocrite of an ex wife who has used child, placed in middle of adult situations, used child as weapon to control, alienation of me- this family as well. (since she found out about me) We have no money for attorneys to fight her. Was recently awarded all medical even though on state aide, plus- financial stress of unnecessary braces. Visitation set verbally of which she constantly violates on her whim. Usually based on money. Even though have cell phones, gets hair done, nails done etc. Drives back and forth to cities for doctor appointments. Uses child support for HER bills. She has doctors note she cannot work, but yet has worked for cash under the table. Claiming disability while working as a babysitter.

--Teresa Braun

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Best interests of children are best served by maintaining, as much as possible, the type of close, shared parenting relationship that existed before the divorce. Common sense & research both support this joint custody/shared parenting arrangement between kids & parents.

I’m in a position right now where this hits me hard, I’m going through a divorce right now, most people would tell you it is a no brainer that we both should have joint physical custody of our children, our evaluator said this week that there is no way she would recommend that because we cannot communicate in her eye which explains why my wife will not even look at me, because it is to her benefit. I’m very involved in the raising of our children; I’m also at school on a regular basis and have a very good relationship with her teachers and staff.

The other thing is I bought my house 4 years before we got married and would like to continue live and raise our children there. The evaluator ask me last week what was more important to me my children or my house, I said the kids but the house is where we have always lived and I grew up in the neighborhood my whole life. Our kids are 4 and 9 years old. I know deep down inside both kids need both parents and it is not right that it takes two people to make them and the system thinks only one is needed to raise them.

-- Mike Campbell

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Regarding a presumption of joint physical custody

A strong presumption of joint physical custody of children should be the law. Since parental rights are " the oldest of fundamental liberties" according to the U.S. Supreme Court, the burden of proof should be on the parent or other parties who want to take away that right.

Since anger is the NORMAL response to injustice, the current de facto presumption of mother custody of children is promoting domestic violence including thousands of domestic abuse related suicides each year. Each year about 5000 men are driven to suicide by abusive women using the gender biased court as their weapon of choice. The Duluth Wheel of Abuse is a good description of how woman act in custody fights.

Women's groups claim domestic violence sky rockets at the time of a breakup. This is logical and to be expected. At the time of a breakup, every man knows the woman will use her female privileges to strip the man of his children, assets, future income, civil liberties and anything else dear to him. Anger is the normal response to such catastrophic losses. The courts amplify the anger by refusing to punish, or worse, rewarding women for perjury and other misconduct. Men know this to be the case since they have all heard the horror stories of other men. If you want to make a man angry, there is no surer way than to harm his kids.

Suicide rates of divorced men triple but those of divorced women do not, indicating that it is men's treatment by the courts that is the primary causative factor of the increase. The number of lives lost to family court related suicides is four times that of women’s lives lost to domestic violence. How happy would you be if your children were taken away from you? Would you be angry at the kidnappers??

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THOSE WHO OPPOSE JOINT PHYSICAL CUSTODY HAVE CREATED AN EPIDEMIC OF FATHERLESSNESS. Minnesota Courts and the Legislature have made clear that the alternative to a presumption of joint physical custody is a presumption of mother custody. The true cost of opposing joint physical custody is over 100 billion annually - all the costs of father absence to children and society.

Most child abuse is committed by mothers, especially single mothers. Judges who issue orders of protection based on unsubstantiated or minimal abuse are erring on the side of child abuse. The non-related men that single mothers bring into the household are the greatest threat of child sexual abuse. Such men are also much more likely to abuse or kill the children than the natural father.

Being raised in a mother headed household is the primary risk factor for child poverty. Custodial fathers are much more willing to financially support their children than mothers who are more likely to go on welfare instead. Welfare queens tend to raise welfare queens.Mother headed households produce most of our criminals, drug abusers and academic failures. Children raised in such homes tend to earn less money as adults thereby reducing tax revenues to the state. Sole custody arrangements promote conflict and often bankrupt the parties at the expense of the children. The money that would have been available to help the children instead is spent on legal bills.

The fact that the parties do not cooperate should not be a reason to deny equal parenting time. The current bias in the courts gives women an incentive to be uncooperative. The court can order parallel parenting. To reduce conflict the law should require that a detailed parenting plan be written spelling out decision making provisions, parenting time and penalties for obstructing it. If advisable, a neutral location for child transfers should be designated to protect men from false allegations of abuse. Unless it is clear that it will not work, the court should order 50/50 parenting time in cases where the parties can't reach an agreement. Women should no longer be rewarded for deliberately being uncooperative. If the court does not order 50/50, it should be required to state why the parent deprived deserves to have his/her parental rights diminished.

The current presumption of sole custody to mom of children born out of wedlock should be changed to require automatic joint custody once a recognition of parentage form is signed, with a requirement that a parenting plan be implemented within 3 months. Men who have no money cannot afford to hire an attorney to fight for custody when it would be in the children’s best interest to NOT live with mom. Mom can almost always get a free attorney. All she has to do is make a false allegation of abuse or refuse to get a job. Such options are rarely available to men.

To reduce child poverty, create a presumption of custody of children to the parent who is not on welfare. If women were not “burdened” with custody, they would find it easier to seek and maintain full time employment. Women would be less likely to have children out of wedlock if they knew the state would not reward their irresponsible behavior with automatic sole custody and a monthly check. It is not in society’s best interest to encourage mother headed households, since every major social pathology is linked to fatherlessness.

My husband has a 13 year old son who, barring a miracle, will probably not graduate from high school. Mom was granted custody originally as a reward for having a child out of wedlock. 3

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lawyers told my husband a man cannot get custody over a mother’s objections without proving the mother palpably unfit. He fought for custody anyway because he knew of her substance abuse problems. 2 years later, out of money and hope, he gave up the fight.

He filed for a reversal of custody in 2005. The Guardian ad Litem appointed was so incompetent and biased that Anoka County cancelled her contact, but not before she did irreparable damage to the case. The GAL dismissed all of our allegations as unsubstantiated even though corroborating evidence existed but swallowed all of the mom’s lies. She did not contact any references or attempt to verify any allegations. To make matters worse, Judge Donald Venne repeatedly delayed the case for his own personal convenience. (vacations, continuing education etc.) After 2 years, we could not afford to continue. At our attorney’s advice, we reluctantly agreed to a worthless settlement not knowing that mom was arrested last year for 5th degree drug possession (felony) and driving under the influence of methamphetamine.

In spite of the mom’s continuing drug problems, we cannot afford another custody fight. So the child will spend the rest of his childhood with a druggy mom because of the gender biased courts that insist that children belong with their mothers.

In 2002, my husband filed a constitutional challenge of Minnesota’s child support laws because of our firm belief that the primary reason women demand sole custody instead of joint custody is money. At the time his parenting schedule was every weekend from Friday afternoon until Sunday night, 2 evening per week and 4 weeks in the summer. Even though my husband had de facto joint physical custody, he could not get the title since that would require mom to support her child instead of living off of him.

Since mom has refused to work since 2000, Randy has paid for all of the child’s expenses in both households, including de facto alimony to a deadbeat mom. In a published decision, the Minnesota Appeals Court ruled that custodial parents essentially have no duty to financially support their children since they provide services. In this case (Strandmark v Starr), the noncustodial parent clearly paid everything and provided more services than the freeloader mom. Yet his “services” were not grounds for reducing child support. The change in the child support laws does not make things fairer. The parent with the title gets the time and the money.

Although my husband has de facto joint custody, the child is being harmed because of the legislature’s and court’s refusal to hold women to an adult standard of accountability. The money needed to provide for the child’s special needs has instead been diverted to pay legal fees and the living expenses of a freeloader mom who is rewarded for refusing to work instead of punished. Had there been a presumption of joint physical custody at the time of the breakup, the mom would not have been able to exploit the child for profit nor would my husband have been forced to spend tens of thousands on legal fees.

I would favor a change in Minnesota’s custody laws to favor a presumption of joint physical custody. This would put both parties on an even playing field as they enter the courtroom. Hopefully this law would eliminate some of the biases of judges, guardian ad liters, social workers and others who have significant input into ultimate decisions. It would be important to establish specific guidelines as to overcoming the presumption. Naturally issues of primary caretaker,

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domestic violence, finances, home setting for the children, maturity and psychological make-up of the parties, preferences of the children should be taken into consideration in overcoming the presumption. I am a retired county attorney and family law practitioner for 32 years. I plan on having dinner with my former law partner and a retired judge in a few weeks and will discuss this subject further.

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RE: Joint / Equal Physical & Legal Custody

I am a 70 year old widower who was married for 34 years to the same woman, only to lose her to breast cancer seven years ago. My wife and I were blessed with three great and beautiful children during our marriage, a son and two daughters. All three children were brought up to be loving, law abiding citizens and a credit to society.

I will never forget the day my oldest daughter, who was a fit, loving, nurturing mother, came to me and told me that she and her husband, who was a fit, loving, nurturing father, had decided to divorce. They had two beautiful children together; a daughter, who had special needs, and a son. My daughter told me that her women friends were pressuring her to take revenge against her husband and hire an attorney to handle her best interests in their divorce and take her husband “to the cleaners”, obtain full legal and physical custody of the children, limit her husband to visitation every other weekend, that as a woman, she could get anything she wanted, all she had to do was tell the judge her husband was an unfit father, etc. I listened carefully, and with horror, to what my daughter was telling me her women friends had told her; I could not believe what I was hearing, this could not possibly be my daughter telling me this; she knew better; she was not brought up this way. I also observed the pain and anguish my daughter was feeling; I saw the tears, which told me she did not want to be going through this; and I sensed that she did not really want the marriage to end; that she was concerned for the children; but that marriage counseling had not worked; and then she asked me if I knew of a good attorney. I told my daughter it would be in both her and her husband’s best interests to keep the “divorce machine”, that her women friends were pressuring her into, out of their divorce. By the divorce machine, I mean the lawyers, judges, referee’s, magistrates, Department of Human Services, the child custody evaluators, the County Attorney’s office involving Title IV-D child support collection, and the women’s advocates, because all of these people have a personal financial interest in their divorce, it’s their livelihood; and all this “divorce machine” would do is create incredible conflict between her and her husband when both she and her husband were going through enough pain by deciding to divorce; it’s all about the people in the “divorce machine” keeping and trying to justify their job’s at the expense of divorcing parents and their children, all under the disguise of “best interest of the child.” I suggested to my daughter that, if divorce was their final decision, that she and her husband sit down together and work out the terms of the divorce fairly, each with respect for the other, and not generate any conflict between them; to split the property right down the middle; to share jointly / equally in the legal and physical custody of their two children, that the children needed both a loving mother and father in their lives equally, and especially now if they were divorcing; to share equally in the expense of raising and supporting the children, and to work out a schedule where the children would be with each of them an equal amount of time. I told my daughter that if she tried to keep the children away from their fit, loving father, she would be creating great conflict between her and her husband, making both her and her husband miserable and angry with each other for absolutely no reason at all, and there would be court battle after court battle and hundreds of thousands of dollars pilfered from them by the lawyers representing them as well as other’s in the “divorce

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machine”, and that, when the children got older and started asking questions as to why they couldn’t see or spend more time with their father, she would live to regret doing anything to keep the children away from their father, and the children may even kick her out of their lives for her having done such a terrible thing. Both my daughter and her husband worked outside of the home.

My daughter’s husband had a much better paying job than my daughter, however his job was more demanding of his time, which left him with less time to spend with the children, but he could see and take the children anytime he wanted. Because my son-in-law would have less time available to spend with the children, and because he made substantially more income than my daughter, he and my daughter worked out a plan whereby he would pay for more of the children’s expenses than my daughter as well as some of my daughter’s household expenses. When my daughter and her husband had all the details worked out on their own, I referred them to a lawyer who drew up their divorce decree and had it approved by a judge. It worked beautifully! My daughter and former husband would go Christmas Shopping together for the children for Santa; spent holidays together, birthday’s, take trips with the children together as mom and dad, etc., and in cases where there was a conflict, they worked it out together. Unfortunately, I lost this daughter two years ago to melanoma cancer. Her former husband has the children full time now and he has done an absolutely super job raising these kids; he is an excellent father, and I have the greatest respect and admiration for him. I cannot begin to imagine what the life of my two grandchildren and their father would be like today if either my daughter or her husband had involved the “divorce machine.” Before my daughter died, she said to me, “Dad, I cannot begin to tell you how much I love you; I could not have gone through the divorce and this stupid cancer without you, and how much I appreciate our talk when I told you about getting divorced and the things you said to me to make me think and keep me from getting involved with the family court system.”

It breaks my heart to this day; and I cannot even begin to imagine what my daughter’s life would have been like if she and her husband had involved themselves and their children with the “divorce machine” or what the children’s and their father’s lives would be like today after the death of my daughter. I thank God every day that my daughter and her husband handled their divorce the way they did “for the REAL benefit of their children.”

I realize that not all divorce cases involve two fit, loving parents; that some cases involve one or both parents as abusive, or they have some other issues. However, the percentage of those cases should be small compared to the number of cases involving two fit, loving parents. It is absolutely ridiculous to believe that all men are bad and all women are good; what does make sense is that an equal number of men and women are bad. Just because parents decide to divorce, does not mean they divorce their children. For the “divorce machine” to remove a fit and loving parent from a child’s life, or place a limit on how much time a fit and loving parent can spend with their children is a national tragedy, and I would suggest that it is a violation of a fit, loving parents constitutional rights for a judge to issue such an order; that while a judge may have the “power” to issue such an order, he / she does not have the “authority” to do so under the Constitution of the United States and / or the Bill of Rights.

I encourage the State of Minnesota and the family court system to support joint / equal physical and legal custody of children as the standard in ALL divorce cases, EXCEPT where there is PROVEN, not hearsay, but PROVEN EVIDENCE of child abuse, neglect or a threat to the child’s safety. I would suggest that in cases where divorcing parents have become involved in the “divorce machine” that judges call both parents into a conference room, without attorneys, and tell these parents that they need to work things out together, that, even though they are divorcing, they are going to be in each other’s lives for the rest of their lives because of the children, and let these parents know that equal / joint physical and legal custody of the children will be the court’s decision. By doing this

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judge / parent “sit-down” conference, it may make some parents rethink divorcing and try to work out their differences themselves outside of the “divorce machine” or even to rediscover each other and the reason they got married in the first place, and possibly decide to stay married instead of divorcing. Isn’t it worth a try? If it hasn’t been tried, no one can say “it won’t work” except those who have a personal financial interest in keeping the conflict in divorce for their own personal financial gain. Again, I highly encourage you to support joint / equal physical and legal custody of children as the standard in ALL divorce cases except as I have outlined above.

---DARREL NICHOLS

Mark,

I am Jeffrey Alan Galema and I miss my children very much. I am currently homeless. For the first time in over 20 years I do not have medical or dental insurance. I was the primary caregiver of my children for almost 11years until they were taken away from me and I was removed from our home. I do not know how much more involved a father can be in the lives of his children, yet they still took them away with only unsubstantiated allegations. The judge from the family court system did not want to hear my story, investigate her allegations or talk to my witnesses; one even had a doctorate in psychology and had witnessed me with my children in my own home and his. My calls to Crow Wing County Social Services were not returned. There are no programs or help out there for men who have been mistreated by the system. It has been six months and the process of evaluation has not started. I had no idea there was such injustice in the justice system.

I was taken away from my children and virtually removed from their life with unsubstantiated allegations, but no matter what I will always be their caregiver whenever and wherever they need me. The burden I carry is insignificant to the one that has been placed on them. As I have told them, I have always lived my life allowing nothing to be more important than them and they will continue to be the focus of my life. I will continue to do all I can for my children so I can provide them the path to live their dreams and become whatever it is they aspire to be.

I loved my wife dearly, trusted her completely and worked together with her for over twenty years. I accepted her as she was in spite of our completely different upbringing. We managed to agree on how most things should be handled and I kept complete transparency on how the home and finances were handled. We have put together a great deal of family wealth through hard work, sacrifice, tight budgeting and doing as many projects/repairs as possible I. I gave her the freedom to do whatever was necessary to further her career and get beyond her past. We went to counseling as a couple and read the book Allies in Healing together. I gave up my career, lived with the stigma of being a stay home father, and put my dreams and ambitions on hold trying to do what was right for our family. My ambitions are living a sustainable life on a small farm where I know where our food comes from and drag racing and restoring 60s and 70s muscle cars. I never wanted a divorce.

We were able to have one parent stay home with the children from the time they were very young by moving to Northern Virginia when my wife was promoted to management at ICMA Retirement

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Corporation. We converted a run down house into a very nice home there. It was 3600sq.ft.and had 4 bedrooms, 3 bathrooms, an executive office, 5 car garage with an automotive shop and lift, a great patio, deck and a pond on 13 acres. Every square inch of that home inside and out had been redone by the time we sold it. We had a small orchard, garden, grapes, berries and 2 10-12 bird flocks of chickens. We had a local source for organic milk and meat. We had all the wood we could burn for heat and most of the fence posts placed to create a horse pasture, because Naomi wanted horses. We had good friends, The Boxwood School, where I volunteered and an UU church we attended, where I taught religious education classes to children. Things were just coming together. I had just started drag racing again, something I had not done for almost 15 years. After the shop was ready, we purchased a 1971 Chevy Camaro Z-28 that I could restore when the children were in school. It was a way to bring some extra income into the home. We had a good life there; I did not want to move. One day out of the blue, my wife mentioned she wanted to get a divorce. I asked her to tell the children because I thought they should know. She was not happy and began swearing in front of all of us. It was the first time my children had heard such language. Not long after that she wanted to move to Brainerd, MN claiming she was recruited by a headhunter for a VP position in sales at Bisys. I would learn much later, that she was aggressively seeking other employment in late 2004. I believe she was asked to leave ICMA RC.

January 1, 2005 my wife left for Minnesota. She was in charge of finding us a house and enrolling the children in school. I asked for a house in the country with a garage on 40 acres with lots of trees and some open land. I did not want a property that needed as much work as the last one, so we could spend more time with the children as they were getting older. I was in charge of finishing the projects on the home and getting it ready for sale along with caring for the children, volunteering at Boxwood, taking the children to martial arts classes and all other household duties. We listed the home as summer began. We got an early offer, but it was a contingent sale and the offer fell through. My wife had not yet found a home in MN, so we talked about our options of buying something less expensive to protect our savings and cash flow. My wife found a house she loved just before it was time to start the new school year. It was huge, over 4000 sq.ft. on 15 acres with about 2.5 acres of trees, a hip roof barn, an old pole shed with only a roof used for hay storage, a dilapidated 1 car garage from 1940, two other old out buildings, and a Central Boiler.

We still did not have a contract on our home in VA, when we moved to Brainerd, MN. My wife, her mother and the children moved my car, the plants and the cats to MN two weeks before school started. I stayed behind to be there when the movers left, repaint a room, finish a small project and do a final cleaning of the property. I moved the 1967 Camaro on the car trailer pulled by the 1986 Chevy P/U to MN. I arrived at our new home on Labor Day weekend. I had not lived with my wife for nine months and was looking forward to being with her and doing some family bonding. To my surprise, her brother Niles and his family were there. . No one was watching the children, when I drove into the driveway. His children were riding their bicycles and running into my children. I was not very happy. I had worked 18 hour days for nine months to get to this point and all I wanted was to spend some quality time alone with my family so we could start bonding again. I went in to the house and asked my wife what was going on. I asked her to make her brother control his children, because I did not like watching mine being hurt by them. My children do not act like that and had always been in an environment where they were monitored, included and protected. My

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wife did nothing. She did not even discuss it with her brother. We went boating with them that afternoon. We filled the gas tank on their van and boat and bought all the food for the day. It was hard to be with such mean children all day in such a small space. The next morning I again asked my wife to speak to her brother about his children. She started an argument with me instead. Her brother and his family left early that day.

It was a hard winter. The VA house had not sold. We were paying three mortgages. My wife had overpaid for our new house and it had a first and second mortgage on it. Our new house was a struggle because it had so many problems. We had a hard time keeping it warm enough, because it was short on insulation, had single pane windows, drafty doors and the heat exchanger was not sized properly for the house. The Central Boiler allowed us to burn wood for heat, but created a lot of work finding and cutting wood the first winter. We finally did get a contract, but it required the subdivision of the property. It was another big project to get property subdivided in VA while living in MN. I was able to get it done in about four months with a lot of help from our realtor. In March we closed on the front half of our property in VA and put the back lot up for sale.

The one bright spot was our children. Mrs. Paula Rossum told us she wished all new students could be like Kassie. She had nothing but great things to say about her. Mr. Nate Macejkovic told me we should have more children because they were so wonderful to have in his class. He had both Katie and Kassie. Mrs. Swanson and Mrs. Faust told us that Kristi was a great help in the classroom, because she already new what to do and how to act.

After three years, the house is almost livable, but it still has some big issues. There is now a 30’ x 45’ x 12’ three stall garage with a lift that I built mostly myself. The old pole shed 55’ x 70’ x 12’ has been enclosed and converted into a horse barn. I hauled in a sand floor and redid the drainage with the bobcat. The fences have been repaired and gates installed. The roof, insulation, windows, doors and heat exchanger have been upgraded. Some remodeling and other repairs have been done in the house. When the back lot in VA sold we had netted over $550,000.00 from that property.

Late 2007, my wife was given an actionable review by her company and given sixty days to make it right. At the end of sixty days, she was asked to resign or be fired. My wife resigned and got a good severance package. I supported her completely and believed what she told me. I listened sympathetically to her stories of what had happened and comforted her. I told her I did not think she would have to go back to work. I thought we could limit our short term spending and begin remodeling and flipping lake properties. Prices were coming down and I thought we could wait until next year and find a real bargain. She has wanted a lake property since she got the job in Brainerd. Our plan was always to buy a lake cabin and use it for 3-5 years while we remodeled it and sell it and do it again. In the mean time with the shop almost finished, I could start doing mechanic work out of it and restart the restoration of the 1971 Camaro Z-28, which we could sell. We had a huge garden plot we did not have time to use with so many other priorities that I would love to have planted. All I needed from her was to do more around the house. We were at the point all people would love to be, where we controlled our own lives. We had capital to work with and the knowledge, tools and facilities required to be self-sufficient. We would be able to spend time doing the important things like spending lots of time with the children and working together for the

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best interests of our family. Our children could receive all of the love, attention and support they ever needed. There would always be someone home for them. My wife had other plans.

After the OFP was started (April 2008), I learned many things about my wife from the papers she left behind. My life partner, the woman I was married to, confided in and trusted completely never truly existed in the way she was presented to me. She had kept a divorce file at her work for years. She had been stealing money from the family for longer than I would have ever believed. I found bank receipts and money orders totaling $19,000.00 from 1999. I have found receipts of personal trips she took with colleagues using family money. One time renting a Hummer in Nashville, TN and taking it on an overnight stay in Alabama. In 2005, Naomi withdrew a $41,000.00 cashiers check in her name from our joint account at MidMinnesota Credit Union months before I arrived at our new home in Minnesota. I learned she had her own P.O.Box 152 in Brainerd since she has lived there. She has never shown me a payroll receipt from Bisys claiming she did not get a paper copy. The deposits into our joint checking account do not add up to the income shown on our tax returns. She forged my name on the 2007 State and Federal returns. I found a copy of checks she wrote to her brother Niles totaling $6000.00 from her personal Mid Minnesota CU checking account before I arrived in MN. I found she had 10+ credit cards in her name, when we had always agreed to have only one, which I paid off monthly. I learned of three other separate bank accounts she never told me about. I was overwhelmed with grief and hurt beyond belief, but I knew I had to keep it together and do what was right for the children. I agreed to the OFP with no finding of guilt, once I was told by my attorney the judge said he was going to sign off on the OFP regardless of what my witnesses or I said. He was going to put the children on the stand and I did not want that to happen. Their situation was already extremely difficult for them. I did not want them to be ripped apart by the attorneys. I did not want them to believe for the rest of their lives that they were the reason their parents had gotten a divorce. I wanted them to be back in their home no matter what.

I have learned that even being the primary caregiver for my children for almost eleven years has no bearing in the family court process. I have been torn away from my children on mere allegations, which have never been substantiated or even investigated. They no longer have someone to walk them down to the bus each day or a papa waiting at the end of the driveway for their return home from school. The person who made all of their favorite meals and all natural chocolate chip cookies for them cannot provide food for them unless it comes from a restaurant. Their menu has completely changed. Their schedule is nothing like it was. We no longer get to do special projects together. We are barely allowed to interact with each other and the children are afraid to say anything about their lives to me. We used to talk about everything together. They knew they could ask me anything without consequence and I would tell them the truth. Now they are afraid to talk to me. They have been told I am a dangerous man. The time they spent in the Women’s Shelter caused extreme behavior from the children. Kassie talked very fast and was extremely nervous. Kristi was very clingy and unhappy. Katie was withdrawn and unable to concentrate. They were unable to sleep, tormented by the other children and their schoolwork suffered. The way they interact with each other has changed and not for the better. They used to get along very well and now they pick at each other and insult one another. At the time in their lives when their choices and decisions become more permanent and critical they will be left home alone and unsupervised after school and during the summer while the single parent is at work. Even the best children can

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be tempted to make bad decisions when the parents are not around. I have been instrumental in making my children who they are. I pray I can continue to be a big part of their life and help them separate right from wrong and do what is right. I know after the divorce is final, the attorneys, judges, guardians, and mediators go away. All that is left is a father, a mother and the children who must live with what has been done to them.

__________________________________________________________________________________________________________________

It seems to me only logical that there should be a presumption of joint custody in all ways. If a family with two parents breaks up it would be unjust to initially assume either parent is better able to provide a healthy home for the offspring. In Kandiyohi County, there seems to be a knee-jerk assumption by court appointed guardians that mothers are most believable and best able to have custody. I have seen tragic implications in the lives of three young boys.

It must be difficult to at best to rule on family issues, but unequal distribution of a child's time with his or her parents sends an undeniable message to the child from the state that one parent is the better parent. Does the state want to send that message to children weighted by historical prejudice in favor of mothers?

There must be more analytical ways to determine the best interest of children in divorce cases.

Thank you.

Suzanne Napgezek

__________________________________________________________________________________________________________________

THINKING CLEARLY ABOUT PRESUMPTIVE JOINT PHYSICAL CUSTODY

by Tom James1

Few proposals for family law reform evoke as much emotion as the presumption of joint physical custody. Unfortunately, discussions of this subject frequently tend to devolve into referenda on the relative value of men and women to their children. Women’s advocates staunchly defend sex role stereotypes that cast women as natural child-nurturers and men as violent, inept and generally unsuited for the responsibility of child-rearing. Men’s advocates respond by pointing to the higher incidence of child abuse and neglect on the part of mothers. Men are accused of being motivated by the desire to control women, of seeking joint custody simply as a means of continuing a pattern of abuse of women. Women are accused of being motivated by the desire for money, viz., higher child support, and power, viz., sole or ultimate decision-making rights in all parenting matters.

Nothing good has ever come from deciding issues on the basis of emotion, stereotypes and self-serving analyses. Moreover, I have to believe that the members of this Study Group are earnestly interested in carrying out the task the legislature has assigned to them, namely, assessing the impact a presumption of joint physical custody would have and whether the legislature should enact such a presumption into law in Minnesota or not. In view of the enormous body of conflicting information that has been published on this subject, that is certainly no enviable task.

The purpose of this submission is to help the Group perform its assigned task, by providing it with critical information and a nonpartisan framework for analyzing the issue. I begin by clarifying the meanings of key terms pertinent to the subject. I then define the current state of Minnesota custody

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law relevant to the presumptive joint physical custody issue, with a brief review of how we arrived at this point. Finally, I compare and contrast the current judicial preference for sole custody with the proposed rebuttable presumption of joint physical custody, emphasizing their relative impacts on: (1) domestic violence; (2) exposure of children to parental conflict; (3) litigation; (4) mediation; (5) child support; (6) child development; and (7) constitutional law.

1 Tom James is an attorney-mediator in private practice in Cokato, Minnesota. He received his J.D. degree from Southwestern University School of Law in Los Angeles, California; a Bachelor of Arts degree in Philosophy from the University of California at Berkeley; and a certificate in family mediation from Hamline University Dispute Resolution Institute. He is also a member of Prevent Child Abuse Minnesota. This article ©2008 Tom James.

I. Definitions

Custody

In its broadest sense, custody means possession of a person or thing for safekeeping. In the family law context, it means possession of a person, usually a child, for the purpose of providing care for that person. BLACK’S LAW DICTIONARY 168 (2nd ed. 2001.)

Physical vs. legal custody

In many states, custody means both the physical possession of a child and the right to make decisions concerning the child’s care and upbringing. In Minnesota and several other states, however, the law makes a distinction between two kinds of custody: legal and physical. Legal custody means the right to determine the child’s upbringing, including education, health care and religious training. Physical custody and residence means the routine daily care and control and the residence of the child. MINN. STAT. §518.003, subd. 3.

Sole vs. joint custody

Custody, whether legal or physical, may be either sole or joint.

Sole legal custody means that only one of two or more parties has the right to determine a child’s upbringing with respect to education, health care and religion.

Joint legal custody means that “both parents have equal rights and responsibilities, including the right to participate in major decisions determining the child’s upbringing, including education, health care, and religious training.” Ibid.

Sole physical custody and residence means “the routine daily care and control and the residence of the child.” Id.

Joint physical custody “means that the routine daily care and control and the residence of the child is structured between the parties.” Id.

In theory, a judge can make an award of any combination of these things to either or both parties2 to a custody proceeding. The most common combinations, however, are: (1) joint legal custody to both parties and sole physical custody to one party; (2) sole legal custody and sole physical custody to one party; and (3) joint legal custody and joint physical custody to both parties.

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2 In some cases, there may be more than two parties to a custody proceeding. For example, in some cases, there may be, in addition to the child’s two parents, a grandparent or another individual who is seeking custody of the child. The definitions set out in Section 518.003 do not differ in any material respect in such cases.

Parenting time

Parenting time is a relatively new term in Minnesota family law. It was adopted by the Minnesota legislature in the year 2000 to take the place of the older “visitation” concept. Laws 2000, c. 444, art. 2, §§ 26 to 31, subds. 1, 1a 2, 3, 6, and 8. Parenting time “means the time a parent spends with a child regardless of the custodial designation regarding the child.” MINN. STAT. §518.003, subd. 5. Thus, unlike the old terminology, under which the custodial parent was said to have custody and the noncustodial parent was said to have only visitation rights, under the new statute both the custodial and the noncustodial parent have parenting time. When the child is with the custodial parent, that is the custodial parent’s parenting time. When the child is with the noncustodial parent, that is the noncustodial parent’s parenting time.

II. Current Minnesota Law

THE JOINT LEGAL CUSTODY PRESUMPTION

Current Minnesota law recognizes a legal presumption in favor of joint legal custody. In cases where domestic abuse has occurred between the child’s parents, there is a legal presumption against joint legal custody.

The court shall use a rebuttable presumption that upon request of either or both parties, joint legal custody is in the best interests of the child. However, the court shall use a rebuttable presumption that joint legal or physical custody is not in the best interests of the child if domestic abuse, as defined in section 518B.01, has occurred between the parents.

MINN. STAT. §518.17, subd. 2.

If neither party objects to an award of joint custody, and there is no evidence of domestic violence between the parents or of inability to cooperate, then the court must make an award of joint legal custody to the parties. If there is evidence of domestic violence, and the court makes a finding that domestic abuse has occurred between the parties, then the court must make an award of sole legal custody unless persuasive evidence is introduced to show that joint legal custody is in the child’s best interests in that particular case. Ibid.

If either party objects to an award of joint legal custody, then the court may order it only if it makes written findings concerning the presence or absence of domestic abuse, and also concerning the parties’ ability to cooperate. This is true irrespective of whether either party has alleged domestic abuse or not. Id. Additionally, if a parent objects to an award of joint custody, then the court must provide a detailed explanation of how an award of joint custody will be in the child’s best interest in that particular case. Id. In other words, the presumption takes the place of specific findings of facts on whether joint custody is in a child’s best interest in a specific case if and only if neither party objects to it. If there is an objection, then the party seeking joint custody has the burden of producing evidence to support a finding that joint legal custody is in the child’s best interests in the particular case at hand.

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Minnesota’s presumptive joint legal custody presumption, then, is of the “hostile parent veto” variety. That is to say, a party who does not want the presumption to be operative in his or her case need only voice an objection (“veto”) and the presumption no longer supplants the need for detailed findings of facts.

The power to veto the operation of the presumption, however, must not be confused with the power to veto joint custody. Objecting to joint custody does not divest the court of the power to make an award of joint custody to the parties. A court can still make an award of joint legal custody over a party’s objection, provided the necessary fact findings for an award of joint legal custody can be made even without the benefit of the legal presumption. Zander v. Zander, 720 N.W. 2d 360 (Minn. App. 2006), review denied.

JOINT PHYSICAL CUSTODY

Unlike joint legal custody, Minnesota law has no legal presumption in favor of joint physical custody. There is a legal presumption against joint physical custody, however, if domestic violence has occurred.

In Schallinger v. Schallinger, 699 N.W.2d 15 (Minn. App. 2005), the Court of Appeals wrote:

There is neither a statutory presumption disfavoring joint physical custody, nor is there a preference against joint physical custody if the district court finds that it is in the best interest of the child and the four joint custody factors support such a determination.

Ibid. at 19. The Court of Appeals sometimes paints with too broad a brush. Minnesota’s custody statute does, in fact, contain a legal presumption against joint physical custody if domestic abuse has occurred between the parents. See MINN. STAT. §518.17, subd. 2 (stating that “the court shall use a rebuttable presumption that joint legal or physical custody is not in the best interests of the child if domestic abuse, as defined in section 518B.01, has occurred between the parents.) The Court’s statement is correct, however, in cases where no domestic abuse has occurred between the parties. In those cases, there is no legal presumption concerning whether joint physical or sole physical custody is in children’s best interests.

Although the statute does not articulate an express presumption against joint custody, it does contain language making a court’s power to award joint physical custody much more limited than its power to make awards of sole custody. A party seeking an award of sole custody must persuade the court that the thirteen “best interests” factors set out in subdivision 1 of Section 518.17 weigh in favor of an award of custody to that party. A party seeking an award of joint physical custody likewise must prove that the thirteen “best interests” factors set out in subdivision 1 of Section 518.17 weigh in favor of the kind of custody award he or she is seeking.3 In addition, though, he or she must also allege and prove that:

(1) the child’s parents have the ability to cooperate in the rearing of their children;

(2) the parents have a dispute resolution method in place and are willing to use it;

(3) an award of sole custody would be detrimental to the child; and

(4) no domestic abuse has occurred between the parents.

MINN. STAT. §518.17, subd. 2.

It is because of these latter requirements that it is much more difficult to obtain an award of joint physical custody from a court than an award of sole physical custody -- even when joint physical custody is what both parents earnestly, knowingly and voluntarily desire. Although these four

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factors must be “considered” in every case in which either joint legal or joint physical custody is sought, parties seeking joint legal custody have the benefit of a presumption that joint legal custody is in their child’s best interests, thereby negating the need to present evidence in support of factor number (3). That is, they don’t need to find and present evidence to the court that sole legal custody would be harmful to their children. Without the benefit of a presumption that joint physical custody is in children’s best interest, however, parents seeking joint physical custody must persuade the court not only that joint physical custody would be beneficial to their children, but also that an award of sole physical custody to one of them would actually be harmful to their children. Ibid. Consequently, it is not only possible, but it is also quite common, for courts to deny joint physical custody to parents even when they both agree that it is what

The thirteen “best interest” factors set out in subdivision 1 of Section 518.17 are: “(1) the wishes of the child's parent or parents as to custody; (2) the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference; (3) the child's primary caretaker; (4) the intimacy of the relationship between each parent and the child; (5) the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child's best interests; (6) the child's adjustment to home, school, and community; (7) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity; (8) the permanence, as a family unit, of the existing or proposed custodial home; (9) the mental and physical health of all individuals involved; except that a disability, as defined in section 363A.03, of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interest of the child; (10) the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any; (11) the child's cultural background; (12) the effect on the child of the actions of an abuser, if related to domestic abuse, as defined in section 518B.01, that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and (13) except in cases in which a finding of domestic abuse as defined in section 518B.01 has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.” MINN. STAT. §518.17, subd. 1. 5 they want and desire for themselves and their children. ”Presumptions” vs. “preferences” In Schallinger, supra, the Minnesota Court of Appeals indicated that there is neither a statutory “presumption” nor “preference” against joint physical custody if the “best interest” factors and the four additional statutory factors described above support the conclusion that joint physical custody is in a child’s best interest in a particular case. This is true, however, only because the preference for sole custody is already built into the statute. It appears in factor number (3). To obtain an award of joint physical custody, the statute requires a party to prove, inter alia, that sole physical custody would actually be harmful to his child in this particular case. By contrast, a party seeking sole physical custody of children is not required to prove that joint physical custody would be harmful to the child. In other words, the statute allows the court to assume, without proof, that sole physical custody normally is beneficial to children, and that joint physical custody normally is not. If a party can present adequate evidence to persuade a court that the assumption is not appropriately applied in a

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particular case -- that is, evidence that sole physical custody would actually be harmful to a child in a particular case -- then the court may consider making an award of joint physical custody in that particular case. Otherwise, it may not. In this way, the statute embodies a preference for sole physical custody, without officially rising to the level of an evidentiary presumption affecting the burden of proof.

Unmarried parents

The legislature has also expressed a preference for sole custody in the context of unmarried parents. In cases where the parents of a child are not married to each other, the legislature has expressly adopted the maternal preference doctrine, legislatively awarding sole legal and physical custody of children to their mothers in those cases. Minn. Stat. §257.75, subd. 3. This is true even if the parents have signed a valid recognition of parentage having the same force and effect as a judgment of paternity. In re the Custody of J.J.S., 707 N.W. 2d 706 (Minn. App. 2006.) Under Section 257.75, an adjudicated father has no rights of custody at all -- whether joint or sole -- and, indeed, no right at all to have access to or to exercise parenting time with his child, unless and until he files a petition in court and presents sufficient evidence to persuade a judge that allowing the child to have contact with his father will be in the child’s best interests. Once the parties are before the court on a properly filed custody motion, and the father has established a prima facie case that allowing the child to have contact with his father would be in the child’s best interests, then the court is supposed to apply the same “best interests” analysis that it applies to married parents to decide custody and parenting time issues. Ibid.

Sex of parent as a decisional factor

As noted, discrimination on the basis of sex is explicitly permitted under Minnesota law when the discrimination is practiced against unmarried fathers, even if paternity has been 6 conclusively established. Once a court case is commenced, however, courts are not supposed to decide custody cases solely on the basis of sex.

MINN. STAT. §518.17, subd. 3 provides:

In determining custody, the court shall consider the best interests of each child and shall not prefer one parent over the other solely on the basis of the sex of the parent.

A common misconception about that statutory proscription is that it prohibits Minnesota courts from deciding custody cases on the basis of the sex of the parent. A careful reading of the provision reveals that it only prohibits the making of decisions solely on the basis of sex. In Linderman v. Linderman, 364 N.W. 2d 872 (Minn. App. 1985), the Court of Appeals reviewed a custody order in which the district court expressly stated a preference for awarding custody to mothers, as part of the decisional process that led to the award of custody to the mother in that case. The Court of Appeals refused to reverse and remand for gender-neutral findings. Rather, the Court of Appeals affirmed the trial court’s decision, stressing the word “solely” in Section 518.17, subd. 3 and noting that the trial court “had considered several child custody factors” in addition to the sex of the parents.

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Under current Minnesota law, then, sex discrimination is allowed prior to the commencement of a custody proceeding with respect to unmarried fathers, and it is allowed against both unmarried and married fathers once a custody proceeding is commenced, provided the court also looks at some of the “best interest” factors set out in subdivision 1 of Section 518.17 when rendering its decision.4

III. Historical Background

To understand the current state of Minnesota custody law, it is helpful to understand its historical origins and development.

Marital fault as the original decisional basis

A common misstatement about custody law in Minnesota is that it was originally patriarchal, that is, that Minnesota custody law originally favored fathers. This is certainly not an illogical conclusion one could draw from other known facts about early American law. Early common law treated children as chattel (property.) At the same

4 In theory, subdivision 3 of Section 518.17 would also permit a court to refuse custody to a woman on the basis of her sex, so long as the court also reviews some of the “best interests” factors in the course of practicing the discrimination. I am not aware of any published cases in which this issue has been addressed, however, probably due to the fact that historically courts have elected to discriminate against fathers rather than mothers in custody cases, as discussed in the next section of this paper. 7 time, it treated a married couple as a single juridical person.5 In addition, early American law discriminated against women by declaring the husband the manager of the property belonging to that unified juridical “person.” A married woman could not hold a valid title to property in her own name separate from her husband.6 Since a married couple was treated as a single legal “unit,” with the man being the legally recognized manager (custodian) of the unit’s property, and since children were treated as property, it would seem logical to infer that courts must have awarded custody of children to fathers in every case. Logical as that may seem, it was not, in fact, the way custody law developed in very many American states. It is not the way custody law developed in Minnesota.

The earliest decisional basis for custody cases in Minnesota, as in most other American states, was not patriarchy; it was marital fault.7

The same thing cannot be said about England. At one time in England’s history, its common law did grant fathers a superior right to custody of their children. King v. DeManeville, 102 ENG. REP. 1054, 1055 (K.B. 1804.)

A few American states followed the early English rule of law in this respect, but the laws of most jurisdictions in the United States have always authorized awards of child custody to mothers as well as fathers. Bishop, J., COMMENTARIES ON THE LAW OF MARRIAGE AND DIVORCE 518, 520 (1852). Rather than decide cases on the basis of sex, early American courts decided child custody cases on the basis of marital fault, with the innocent spouse being the one presumptively entitled to sole custody of the children. Ibid. (“The children will be best taken care of and instructed by the innocent party.”) See also Reiland v. Reiland, 160 N.W. 2d 30 (Minn. 1968)(recognizing that “it is usual to award custody of children to the innocent spouse,” but holding that a court may apply a

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preference for maternal custody in cases involving children of “tender years” even if the mother is the one who is at fault for the breakup of the marriage.)

The “best interests of the child” standard

Though marital fault was the decisional basis for custody in the territorial law of Minnesota during the first part of the nineteenth century, it was very early supplanted by

5 The early common law concept of the juridical unity of husband and wife was abolished in Minnesota in the nineteenth century. Laws 1887, c. 207. See now MINN. STAT. §519.01 (“Women shall retain the same legal existence and legal personality after marriage as before, and every married woman shall receive the same protection of all her rights as a woman which her husband does as a man.”)

6 This rule was abolished in the nineteenth century with the passage of Married Women’s Property Acts. Minnesota’s Married Women’s Property Act is now codified in MINN. STAT. §519.02. It derives from Laws 1869, c. 56, §1.

7 This is evident, as well, from the wording of Minnesota’s first divorce statute, which codified the power of courts, in divorce cases, to determine which of the two parents shall have custody of the children. Comp. Stat. 463 (1855). Had it been the rule that custody of children was routinely granted to fathers because children were regarded in law as their property, then this provision of one of Minnesota’s earliest laws would not have made any sense and there would not have been any reason for its existence. For an early Minnesota decision acknowledging the importance of deciding, on the facts of each case, which of two parents - mother or father - should be awarded custody of children in a divorce, see True v. True, 6 Minn. 458 (1861.) 8 consideration of what sort of custody arrangement is in a child’s best interests, irrespective of which parent’s conduct had provided the grounds for the divorce. In a particularly high-profile case in the 1840’s, a woman named Ellen Sears d’Hauteville sought custody of her infant son notwithstanding she was the one who was found to have been at fault for the breakdown of the marriage. Her argument was that children of tender years have a special need for their mothers that fathers cannot fulfill, and that this need should be regarded in law as outweighing any marital misconduct on the mother’s part. Her argument succeeded, and courts began turning their attention to making custody decisions on the basis of a determination of what is in their best interests.8 By the turn of the century, marital fault had been supplanted by the “best interests” standard as the decisional basis for custody cases. Jacobs v. Jacobs, 136 Minn. 190, 161 N.W. 525 (Minn. 1917)(describing as a “universal rule” that “custody of the children may be awarded to the wife...if for their best interest, although the husband has been guilty of no misconduct.”)9

The “best interests of the child” standard has been expressed in a variety of ways. In Jacobs, the Court put it this way: “the court...will place the interests of the children above the rights of either parent, and will make such provision for their care and custody as will best secure their future welfare.” Ibid., 136 Minn. at 195. See also State v. Greenwood, 87 N.W. 489 (Minn. 1901)(“in controversies between parents as to their custody, the welfare of the children will be given controlling consideration by the court”); State v. Galson, 156 N.W. 1 (Minn. 1916)(“the first if not the only consideration is the welfare of the child”); Hervey v. Hervey, 230 N.W. 479 (Minn.

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1930(“the main and controlling consideration is the welfare and best interests of the child”); State ex rel. Larson v. Larson, 252 N.W. 329, 332 (Minn. 1934)(“the welfare of the child is the prime consideration in determining to whom the custody shall be given”); State ex rel. Price v. Price, 2 N.W. 2d 39 (Minn. 1942)(“the best interests of the child is the paramount consideration”); Kaehler v. Kaehler, 18 N.W. 2d 312 (Minn. 1945)(“The primary consideration in determining custody is the welfare of the child, and to this welfare the selfish and unselfish desires of the parents must be subordinated, without regard to which parent is to blame in making a divorce necessary”); French v. French, 53 N.W. 2d 215 (Minn. 1952)(same); Fish v. Fish, 159 N.W. 2d 271 (Minn. 1968)(“overriding consideration in custody proceedings is the child's welfare.”)

MATERNAL PREFERENCE AND THE “TENDER YEARS” DOCTRINE

In addition to heralding a shift of focus in custody cases from marital fault to child’s best interests, the Sears d’Hauteville case also heralded the beginning of the maternal preference in American custody law; that is, the judicial belief that custody of children ordinarily should be placed in the custody of their mothers rather than their fathers,

8 For a full account of the Sears d’Hauteville case and the judicial shift of focus to what is in children’s best interests, see Grossberg, M., A JUDGMENT FOR SOLOMON (1997).

9 “The children are not responsible for the unfortunate differences which have caused the estrangement and separation of the parents and ought not to suffer therefrom. Their rights do not depend upon the degree of culpability of one or the other parent, and their needs must be provided for whether the existing conditions have been brought about by the fault of one or the other or of both parents.” Ibid. 9 unless the mother is demonstrated to be utterly unfit to parent. In cases involving the custody of very young children, the maternal preference became known as the “tender years” doctrine.

The “tender years” doctrine was formally enacted into law in England in 1839, by the Talfourd Act of 1839. ACT TO AMEND THE LAW RELATING TO THE CUSTODY OF INFANTS, 2 & 3 VICT., c. 54 (1839). Minnesota courts started applying the maternal preference and “tender years” doctrines shortly thereafter. See, e.g., Flint v. Flint, 63 Minn. 187, 65 NW 272 (1895).

The “tender years” doctrine has been expressed in a variety of ways. Some examples: Volkman v. Volkman, 185 N.W. 964 (Minn. 1921)(“Ordinarily children who are so young [6 years old] are best off if left in the care of their mother”); Larson v. Larson, 223 N.W. 789 (Minn. 1929)(“Where the mother is a fit person to have the custody of the child and is able to properly care for it, the general rule is that a child of tender years should have the care of the mother”); Menke v. Menke, 6 N.W. 2d 470 (Minn. 1942)(“Ordinarily, the mother, if a fit person, is given custody of a child of tender years”); Johnson v. Johnson, 27 N.W. 2d 289 (Minn. 1947)(“Almost without exception we have held that...the custody of very young children should be awarded to the mother”); Meinhardt v. Meinhardt, 111 N.W. 2d 782, 784 (Minn. 1961)(“[O]ther things being equal, the welfare of children of tender years is best served by their being left in the care of their mother”); Borchert v. Borchert, 154 N.W. 2d 902 (Minn. 1967)(“a bad wife does not necessarily mean a bad mother, and...children of tender years are normally better off with the mother than with the father”); Fish v. Fish, 159 N.W. 2d 271 (Minn. 1968)(“ordinarily it is better to leave children of tender years with their mother”);

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Hansen v. Hansen, 169 N.W.2d 12 (Minn. 1969)(“custody of young children should be awarded to the mother unless doing so would be detrimental to their welfare”)

In Eisel v. Eisel, 110 N.W. 2d 881, 884 (Minn. 1961) the Minnesota Supreme Court explained the rationale for the “tender years doctrine” as follows:

The supervision of the daily routine of a child of this age normally is looked after with greater attention and consideration by the mother, whose natural love promotes concern, care, and sacrifice which may never occur to others not so closely bound. To deny a child of this age his mother's love and care may lead to emotional disturbances, permanently inimical to his well-being. Because of this, on many prior occasions we have interfered where the trial court has taken a child of tender years from the mother's custody.

The development of the maternal preference doctrine has been explained as follows:

Courts tended to interpret the best interest standard through a cultural lens that focused on women’s and men’s [supposed] essential differences. Judges adopted 10 presumptions based on gender stereotypes that reflected the division of labor in the middle-class family. The welfare of children...was linked to the nurturing, stay-at-home mother. Influenced by the same cultural norms, mothers retained custody in the vast majority of divorces.

Woodhouse, B., Child Custody in the Age of Children’s Rights: The Search for a Just and

Workable Standard, 33 FAM. L. Q. 815, 818 (1999)

The maternal preference is sometimes described as being limited to children of “tender years,” but courts have extended it to cases involving older children, too.10 State ex rel. Price v. Price, 2 N.W. 2d 39 (Minn. 1942)(“girls of whatever age”); Eisel v. Eisel, 110 N.W. 2d 881 (Minn. 1961)(“mother is ordinarily the proper person to have custody of a minor child.”) In Eisel, the child was 8 years old and had been in the father’s custody for four years. After a four-year absence, the mother decided she was ready to start parenting, so she petitioned for custody. Although there was no proof that the father was a bad parent, the court nevertheless transferred custody to the mother anyway. It based its decision entirely on the maternal preference doctrine alone, declaring that “children should have as much of the companionship of their mother as possible, there being no satisfactory substitute for her care; that such care is indispensable; that nothing is so helpful to an infant as her love.” Ibid. (citations omitted.) By taking custody away from the father solely on the basis of maternal preference, the Court effectively declared that fathers, by contrast, are dispensable.

See also Rice v. Rice, 231 N.W. 795, 796-97 (Minn. 1930)(“as between the father and the mother the mother should be preferred....[C]ustody of a child should be awarded the mother, even though the home, the comforts, the financial and educational advantages be humble, meager, and poor”); Wallin v. Wallin, 187 N.W. 2d 627 (Minn. 1971)(“a mother is entitled to the custody of her children unless it clearly appears that she is unfit....”)

An adjunct to the maternal preference doctrine and its subset, the “tender years” doctrine, is the presumption that mothers are fit to have the care and custody of their children. Hansen, supra; Lindberg v. Lindberg, 282 Minn. 536, 163 N.W. 2d 870. To prevail, therefore, a father seeking custody of his children was required to prove not only that the children’s best interests would be

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served by placing them in his custody, but also that the mother was completely unfit to be a parent -- and for reasons other than being the one at fault for the breakup of the marriage. For example, a father seeking a divorce on the basis of the wife’s adultery, cruelty and/or mental illness would be barred from being awarded custody of the children unless, in addition to those things, he was also able to prove: (1) that the mother was completely unfit to be a parent; and (2) that placement of the children in his custody would be in their best interests. Because there

10 In England, the maternal preference was extended to older children by legislative enactment. ACT TO AMEND THE LAW AS TO THE CUSTODY OF INFANTs, 36 & 37 VICT., c. 12 (1873)(extending the maternal preference to children over the age of 7 as well as children under the age of 7.) In America, it was generally the courts, not the legislature, that effected the extension. 11 was no comparable “paternal preference,” mothers did not have to prove a father unfit before they could be awarded custody of their children. Since mothers were presumed to be fit parents without necessity for proof, and the “tender years” doctrine established a presumption that the best interests of children is served by being placed in their mother’s custody, the only thing a woman needed to do to establish her right to sole custody of a child was appear and identify herself as the child’s mother. The only thing she had to do to establish grounds for a modification of custody was appear and state that she is now ready and willing to assume custody, irrespective of how long she was gone, the reasons for her absence, and the attachments the child may have formed with the custodial father in the interim.

By the 1970’s, the maternal preference and its subset, the “tender years” doctrine, had become the decisional basis for custody in every American state, including Minnesota.

The need for a gender-neutral standard

With the advent of the women’s movement of the 1970’s, sex stereotypes of all kinds came under fire. Two important U.S. Supreme Court cases during that decade, Reed v. Reed, 404 U.S. 71 (1971) and Orr v. Orr, 440 U.S. 268 (1979) held that the Equal Protection Clause of the 14th Amendment prohibits states from discriminating on the basis of sex. Although the issue has never been addressed in Minnesota, the courts of other states, applying the rationale of Reed v. Reed and Orr v. Orr, have ruled that sex-based custody laws and rules of decision are unconstitutional. See, e.g., Devine v. Devine, 398 So. 2d 686 (Ala. 1981); Pusey v. Pusey, 728 P. 2d 117 (Utah 1986.)

In Minnesota, the legislature was quicker to act on the problem of sex discrimination in custody decisions than the courts were. In 1969, the Minnesota legislature added a provision to its basic custody law, declaring that custody of children is no longer to be decided solely on the basis of sex. Act of June 6, 1969, ch. 1030, §1, 1969 Minn. Laws 2081 (now codified at Minn. Stat. §518.17, subd. 3.)

Divested of the benefit of a century of judicial precedent founded on the maternal preference as the principal decisional basis in custody cases, courts had to find some other basis for deciding what kind of custody arrangement is in children’s best interests.

THE “PRIMARY CARETAKER” PRESUMPTION

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The judiciary responded to the legislature’s disapproval of their maternal preference doctrine by attempting to re-cast the basis of custody decisions in a way that would appear to be gender-neutral. Hence, the primary caretaker presumption.

The primary caretaker presumption holds that a child’s best interests are normally served by placing the child in the care of the party who has been the child’s primary caretaker. It developed out of the work of Joseph Goldstein, Anna Freud and Albert Solnit. In their 12 influential book, Beyond the Best Interests of the Child11, they postulated that children need a single, primary attachment figure, and that they will suffer harm if their relationship with this individual is disrupted. In Pikula v. Pikula, 374 N.W. 2d 705, 713 (Minn. 1985), the Minnesota Supreme Court expressly adopted the “primary caretaker” presumption as the principal decisional basis for custody decisions in Minnesota.

Neither mother’s advocates nor father’s advocates were happy with the primary caretaker standard, however. Women’s advocates argued that it penalized women who chose to enter the workforce rather than be stay-at-home moms. Father’s advocates, meanwhile, complained that it allowed too much room for the operation of bias and prejudice about the extent of men’s involvement in parenting, and they also began to question the soundness of the theory underlying the primary caretaker presumption, that children need only a single attachment figure.

Responding to all of these concerns the legislature, in 1989, amended Section 518.17 to expressly prohibit courts from using the primary caretaker factor to the exclusion of all other factors. Act of May 25, 1989, ch. 248 §2, 1989 Minn. Laws 834, 836, codified at Minn. Stat. §518.17 (Supp. 1989). The courts complied with this directive, rendering written decisions containing findings of facts showing that they considered the other “best interest” factors set out in Section 518.17, subd. 1. Notwithstanding their consideration of those other factors, however, they continued to apply a presumption that the best interests of children are normally served by placing them in the sole custody of the parent who has been their primary caretaker. At the next session, the legislature amended the statute yet again to make it absolutely clear to the judiciary that the primary caretaker factor set out in subdivision 1 of Section 518.17 may not be used as a presumption in determining what kind of custody arrangement is in a child’s best interest. Act of May 3, 1990, ch. 574, §13, 1990 Minn. Laws 2123, 2132, codified at Minn. Stat. §518.17 (1990).

THE JUDICIAL PREFERENCE FOR SOLE PHYSICAL CUSTODY

The primary caretaker presumption, founded as it was on the theory that children benefit the most from having a single attachment figure, dovetailed nicely with the traditional hostility that Minnesota courts have had to the concept of joint physical custody. That hostility has been expressed in a variety of ways over the years. It has never expressly been elevated to an evidentiary presumption affecting the burden of proof, but the courts have long expressed a “preference” for determining that awards of sole custody, rather than joint custody, are in children’s best interests.

The judicial preference for sole physical custody and against joint physical custody has been expressed in a number of cases. See, e.g., McDermott v. McDermott, 255 N.W. 247 (Minn. 1934)(“As a general rule, divided custody of...a child is not for its best interest, and, if the mother is a fit and proper person and able to and does properly care for the child, she should have its custody and care”); Menke v. Menke, 6 N.W. 2d 470 (Minn.

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11 Goldstein, J., Freud, A. and Solnit, A., BEYOND THE BEST INTEREST OF THE CHILD (1973). 13 (1942)(“Part-time or divided custody of a child is not desirable”); Kaehler v. Kaehler, 18 N.W. 2d 312, 314 (Minn. 1945)(“divided custody of a child of...tender years is not desirable. Regularity in the daily routine of providing the child with food, sleep, and general care, as well as stability in the human factors affecting the child’s emotional life and development, is essential, and it is difficult to attain this regularity and stability where a young child is shunted back and forth between two homes”); Brauer v. Brauer, 384 N.W.2d 595 (Minn. App. 1986)(“Joint physical custody, because of the divisiveness inherent in such a scheme, can rarely be in the best interests of a young child, and it is appropriate only in exceptional cases”); Peterson v. Peterson, 393 N.W. 2d 503 (Minn. App. 1986)(“joint physical custody is not a preferred situation”); Wopata v. Wopata, 498 N.W. 2d 478, 482-83 (Minn. App. 1993)(“Joint physical custody, sometimes referred to as divided custody, is not a preferred arrangement” and will only be allowed in “exceptional cases.”)

IV. Impact of Presumptive Joint Physical Custody

To assess the impact of presumptive joint physical custody it is necessary to identify the point of reference from which the impact is measured. Assessments of the impact of joint physical custody on children following a divorce or separation of their parents are of little use if they fail to differentiate between the impact of joint physical custody, on one hand, and the impact of the divorce or the separation itself, on the other hand. Accordingly, the only measurements of any ultimate relevance are not between families with joint physical custody and intact families, but between divorced or separated families with joint physical custody and those with sole physical custody arrangements.

Domestic Violence

Under current law, there is a rebuttable presumption against joint custody if domestic violence has occurred between the parties. It appears that the legislature intends to retain this presumption, so that the only issue related to domestic violence for this Group to consider is the impact that a presumption of joint physical custody would have on domestic violence in cases in which no domestic abuse has occurred between the parties.

The only pertinent inquiry regarding domestic violence, then, is whether joint physical custody will likely cause parents who have not been violent toward each other in the past to start becoming violent toward each other after joint custody is ordered.

Traditionally, the principal argument against presumptive joint physical custody has been that men who seek joint custody are generally abusive by nature and are seeking joint custody primarily for the purpose of exerting control over their former partners so they can continue a pattern of abuse against them. If the desire of the Group is to generate 14 recommendations for legislation that can withstand constitutional scrutiny, then sexist generalizations12 like these should not be given credence.

Is it true, though, that some men (and some women) might use joint physical custody as a means for exerting continuing control over their former partners, just as they use violence as a means for exerting continuing control. Possibly, but again, the relevant comparison is between parents with sole physical custody and those with joint physical custody. To perform that analysis, it is necessary to ask, “Might some men (and some women) use their right to parenting time as a means for exerting continuing control over their former partners?” Both questions can be answered in the affirmative. It is precisely because of the heightened risk of domestic violence against the custodial

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parent by the noncustodial parent that visitation exchange centers have been established. It is also why courts frequently order exchanges to occur in a public place -- sometimes even a police station -- if the parties cannot afford or do not have access to a visitation exchange center.

The concern that joint physical custody may be used by domestic abusers as a means of continuing a pattern of abuse against their former partners is ameliorated by the fact that the proposed legislation exempts from its operation those cases in which domestic abuse has occurred between the parties. If domestic abuse has occurred, then the presumption would be that joint physical custody is not in the children’s best interests. If domestic abuse has not occurred, then it would be logically impossible for it to “continue” unless one assumes that domestic violence occurs in every relationship and that some victims simply don’t have the resources to prove it.

To say that a party should not have to prove that domestic violence has occurred between a couple effectively shifts the burden to the other party to prove that it hasn’t occurred. Presumptions in the law are appropriate when an inference is so highly probable from a given fact that it is reasonable and time-saving to assume the truth of the inferred fact unless the other party disproves it. Cleary, et. al., MCCORMICK ON EVIDENCE (3rd ed. 1984). The inference that domestic violence has occurred, however, is not so highly probable from the fact that a couple has entered into a relationship and had children together that it should be inferred in every case without proof. The assumption that domestic violence occurs in every relationship in which children are produced is not supported by either logic or the social science research. Measures of the incidence of domestic violence vary according to the definition of domestic violence employed and the willingness of victims to report. Even when very liberal definitions of domestic abuse are used, under circumstances highly conducive to reporting, though, the results obtained do not support a conclusion that domestic violence occurs in the majority of relationships, much less in every relationship. To the contrary, the responsible research in this field reveals that domestic violence occurs in fewer than one-half of married and dating couples.

It is probably true that some victims of domestic violence do not have the resources to litigate. Unmarried fathers should be able to sympathize with this concern because many

12 For more information about sexism in domestic violence research and policy, see James, T., DOMESTIC VIOLENCE: THE 12 THINGS YOU AREN’T SUPPOSED TO KNOW (2003.) 15 of them frequently lack the resources to prepare, file and present the necessary evidence in court to support a petition for the right to have any contact with their children at all. More to the point, it is not only alleged victims of domestic abuse who do not always have the necessary resources to litigate. Women increasingly are being alleged to be the perpetrators of domestic abuse themselves, and many of them do not have the resources to defend themselves against unfounded claims of abuse. If the intent of the Study Group is to advance the interests of women, then it will need to consider the impact the assumption that domestic violence occurs in all or almost all relationships would have in terms of these women’s ability to defend themselves.13

The statute says that when domestic violence has occurred between the parents, the presumption in favor of joint physical custody disappears and is replaced by a presumption that an award of sole custody to the victim parent is in the child’s best interest. Curiously, there is no presumption, under

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current law, about joint legal or physical custody when child abuse has occurred. Section 518.17 only imposes a presumption when domestic violence has occurred between the parents. In addition, although the effect on a child of one parent’s violence toward the other is listed as one of the “best interest” factors, the effect on the child of child abuse is not. Section 518.17, subdivision 1a requires courts to consider evidence of false allegations of child abuse, but there is no language in the statute requiring or permitting courts to consider evidence of truthful allegations of child abuse in determining what kind of custody arrangement is in a child’s best interest. A strict application of rules of statutory construction, specifically, expressio unius est exclusio alterius (whatever is omitted from a statute is understood to be excluded)14 would mean that truthful evidence of child abuse should not be considered in determining what kind of custody arrangement is in a child’s best interest. Of course, a resourceful litigant can usually find a way to sneak evidence of child abuse in indirectly, through one of the other factors (such as the one about the child’s interrelationship with a parent or other people.) In making its recommendations concerning presumptive joint physical custody, the Group may wish to consider whether it might be appropriate to extend the existing presumption against joint physical custody in cases in which domestic violence has occurred between the parents, to cases in which domestic child abuse has occurred. If the purpose of Minnesota custody law truly is to advance and protect children’s best interests, then that would be the logical thing to do.

The Group possibly might be concerned that creating a presumption in favor of joint physical custody may increase the number of cases in which joint physical custody is awarded, thereby reducing the power of courts to impose restrictions on a noncustodial parent’s parenting time for the protection of children from harm. To the extent the harm stems from witnessing domestic violence between the parents, this concern is already addressed in the existing statutory presumption favoring sole custody when domestic abuse has occurred between the parents. In other cases, if the harm rises to the level of

13 It will also need to re-examine the assigned purpose of the Study Group, which is not to explore ways to advance the interests of members of one sex over another, but to study the potential impact of presumptive joint physical custody on children.

14 See generally AM. JUR. 2d, Statutes, Language of Statute, General Presumptions, Implications, and Inferences, Rule That Expression of Particular Matters Implies Exclusion of Others 16 endangerment or impairment of the child’s health or emotional development, then grounds for a modification of custody would exist under Minn. Stat. §518.18, so a change to sole custody could be pursued. Moreover, under current law, a court has the same power to impose restrictions on a joint custodian’s parenting time as it has to impose restrictions on a noncustodian’s parenting time. This was not true prior to 2001, when the relevant statute (MINN. STAT. §518.175) only provided for the imposition of restrictions on a “noncustodial parent’s” visitation. That statute, however, has since been rewritten. References to “noncustodial” parent have been deleted from the statute and the statute now authorizes restrictions on any parent’s “parenting time.” Laws 2000, c. 444, art. 2 §§26 to 31, in subds. 1, 1a, 2, 3, 6 and 8; Laws 2001, c. 51, §8. At the same time, a new term was introduced into Minnesota custody law -- “parenting time.” Its meaning is broader than visitation. It “means the time a parent spends with a child regardless of the custodial designation regarding the

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child.” MINN. STAT. §518.003, subd. 5 (emphasis added.) Under the new laws, then, a court can impose the same kinds of restrictions, conditions and limitations on a joint custodian’s parenting time as it can impose on a noncustodial parent. Accordingly, the enactment of presumptive joint physical custody would have no impact on the power of a court to fashion remedies for the protection of children from harm.

There is some reason to believe that joint custody may actually have a tendency to decrease domestic violence rather than intensify it, if it has any impact at all. Researchers have found that joint custody parents experience less overall stress in their lives. Luepnitz, D., A comparison of maternal, paternal and joint custody: Understanding the varieties of post-divorce family life, 9 J. OF DIVORCE 1 (1986). Joint custody generally tends to ease the emotional and financial strain of raising children alone. Folberg, J., JOINT CUSTODY AND SHARED PARENTING (1984). By contrast, sole custody awards have the effect of generating feelings of inadequacy, often with the result that parents begin to feel awkward or ill at ease with their children and resentful of the other parent. Donnelly, D. and Finkelhor, D., Does Equality in Custody Arrangement Improve the Parent-Child Relationship?, 54 J. OF MARRIAGE AND THE FAM. 837, 838 (November, 1992), citing Stewart, J., Schwebel, A. and Fine, M., The impact of custodial arrangement on the adjustment of recently divorced fathers, 9 J. OF DIVORCE 55 (1986). Overall, parents who are awarded joint physical custody experience less emotional loss, depression, grief, role discontinuity and, significantly, anger. Steinman, S., The Experience of Children in a Joint-Custody Arrangement: A Report of a Study, 5 AM. J. ORTHOPSYCHIATRY 403, 404 (1981); Steinman, S., Joint Custody: What we know, what we have yet to learn, and the judicial and legislative implications, 16 U.C. DAVIS L. REV. 739 (1983).15

15 See also Guidubaldi, J., MINORITY REPORT AND POLICY RECOMMENDATIONS OF THE UNITED STATES COMMISSION ON CHILD & FAMILY WELFARE 9-10 (July, 1996)(“To expect fathers to continue to provide for the child’s well-being [only] through child support payments...neglects the father’s capacity to contribute directly to the child’s well-being and may promote anger, resentment and a sense of ‘taxation without representation.’ For many fathers, the orientation is that of a second class citizen placed outside the child’s mainstream, useful only as a source of continued financial support.”) 17

Because joint custody treats both parents as equals, rather than as victor and vanquished, joint custodial parents tend to treat each other with more respect and less resentment. Of course, there are always some exceptions to the rule. On the other hand, research has shown that while at least half of parents in sole custody situations actively try to sabotage the other party’s relationship with their children, most joint custody parents do not. Wallerstein, J. and Kelly, J., SURVIVING THE BREAKUP 125 (1980).

Exposure to Conflict

The enactment of a presumption in favor of joint custody naturally raises two questions: (1) Does joint custody expose children to parental conflict? and (2) Is exposure to parental conflict harmful to children? In addressing these issues, it is important to keep in mind that the relevant comparison is not between joint custodians and intact families, but between joint custodians and sole

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custodians. Accordingly, the appropriate inquiry is more precisely framed as: (1) Does joint custody expose children to more parental conflict than sole custody does? and (2) Is exposure to parental conflict more harmful to children whose parents share joint custody than to children in sole custody situations?

When reviewing research studies on this subject, it is also important to keep in mind that in many states, the term custody includes both legal and physical custody. Minnesota law already recognizes a presumption in favor of joint legal custody. MINN. STAT. §518.17, subd. 2. The only issue for the consideration of this Study Group is whether Minnesota law should recognize a presumption in favor of joint physical custody, as well.

Failure to understand these distinctions can lead to erroneous conclusions about the impact of joint physical custody. For example, it is often said that because joint custody requires parents to cooperate in the rearing of their children, more frequent communication between the parents is required than in sole custody situations. The premise here is that parents will need to communicate with each other quite frequently if decisions about the child’s upbringing, education, health care, religion and so on, must be made by them together rather than by one parent alone. That point could be relevant in states that do not differentiate between legal and physical custody. Minnesota is not one of those states, though. In Minnesota, it is only those parents who share joint legal custody that will have a need to communicate with each other about the child’s upbringing, education, health care and religion. Decision-making responsibility is what legal custody is about; it is not what physical custody is about.16

A related notion is that joint physical custody requires parents to communicate more frequently with each other because they will need to work out a schedule for exchanging the child between the two residences. The situation of joint physical custodians is no different here, however, from that of the sole custodian. If, as is frequently the case, a

16 It has been observed that heightened exposure to parental conflict is actually a better argument against joint legal custody than joint physical custody. The Minnesota legislature, however, has already deemed presumptive joint legal custody to be in children’s best interest; and it has not directed the Study Group to re-examine that decision. 18 court awards one party sole physical custody and the other party “reasonable parenting time,” then the parties will need to communicate with each other to work out a schedule for exchanging the child between the two residences.

It is sometimes suggested that because Section 518.003 defines joint physical custody as an arrangement in which a child’s residence is “structured between” the parties, joint physical custodians are required to work out their own schedule for exchanging the child without court involvement. The argument is then made that the need to work out a schedule between themselves requires frequent communication, thereby exposing children to more parental conflict. The premise of this argument, however, is not true. Minn. Stat. 518.175, subd. 1(c) provides: “Upon request of either party, to the extent practicable an order for parenting time must include a specific schedule for parenting time....” Again, the term “parenting time” means the time a parent spends with a child, regardless of the custodial designation. Accordingly, courts have the same power under Section 518.175 to impose a specific schedule for parenting time in joint physical custody situations as they

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do in their sole physical custody orders. Just like sole custodian/visitors who are frequently arguing with each other over what “reasonable parenting time” means, so joint custodians who are having difficulty working out a schedule on their own can ask a court to issue an order for parenting time that includes a specific schedule.

Finally, it is frequently suggested that joint physical custody creates more opportunities for the expression of conflict simply because it requires more frequent contacts between the parents for purposes of exchanging the child between the parties. This notion is based on a misconception about what joint physical custody means. In Minnesota, joint physical custody does not mean an absolutely equal division of time, or even a substantially equal division of time. Davis v. Davis, 631 N.W. 2d 822 (Minn. App. 2001.) In Blonigen v. Blonigen, 621 NW 2d 276 (2001), the Minnesota Court of Appeals concluded that even an arrangement where a child spends the entire school year with one parent, and alternate weekends and a period of time in the summer with the other parent, can qualify as joint physical custody. Apart from the label, the every-other-weekend-plus-extended-time-in-the-summer arrangement described in Blonigen was not different in any material respect from the standard parenting time schedule allotted to noncustodial parents.

Moreover, even in situations where joint custodians are allotted more nearly equal time, the frequency of exchanges does not necessarily have to be any greater than in sole custody situations. A liberal joint physical custody arrangement wherein the parents exchange the child every other week for physical custody would not entail a greater number of exchanges than a sole physical custody arrangement wherein the parents exchange the child every other weekend for parenting time.

From my experience both as an attorney and as a mediator, I have observed more frequent and intense conflict in sole custody situations than between joint custodians. This observation has some support in the social science research, as well. See, e.g., . Bauserman, R., Child adjustment in joint-custody versus sole-custody arrangements: A meta-analytic review, 16 J. OF FAM. PSYCHOLOGY 91, 98 (2002). See also Schepard, A., Taking Children Seriously: Promoting Cooperative Custody After Divorce, 64 TEX. L. 19 REV. 687 (1985); Carbone, J., The Missing Piece of the Custody Puzzle; Creating a New Model of Cooperative Parental Partnership, 39 SANTA CLARA L. REV. 1091 (1999); King, V. and Heard, H., Nonresident father visitation, parental conflict and mother’s satisfaction: What’s best for child well-being? 61 J. OF MARRIAGE AND THE FAM. 385 (1999).

Litigation

A fear is sometimes expressed that awards of joint custody will result in increased post-decree litigation, i.e., more frequent returns to court. The premise here is that because joint custodians must make decisions jointly, there will be many more opportunities for disagreement than is the case with respect to sole custodians and visitors, so joint custodians will have more occasion to request judicial resolution of issues than sole custodians and visitors have.

Again, it is important to remember that Minnesota law distinguishes between legal and physical custody. Making decisions about a child’s upbringing is a feature of legal custody, not physical custody. Since sole custodians, joint custodians and visitors all have the same right to ask a court to order a specific parenting time schedule, the enactment of presumptive joint physical custody should have no different impact on post-decree litigation than the current judicial preference for sole physical custody has.

By contrast, the tendency of the “best interest” standard, operating in tandem with a judicial preference for sole custody, to encourage litigation is obvious. The standard encourages litigation because of its ambiguity, both with respect to the meanings of broad terms employed in the

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enumerated factors, and with respect to the manner in which courts are expect to balance them, that is, how the various factors are supposed to be weighted relative to one another. No standard for that is given in the statute. The ambiguity encourages litigation and conflict between parents. Emery, R., Changing the Rules for Determining Child Custody in Divorce Cases, 6 CLINICAL PSYCHOL.: SCI. & PRAC. 323-27 (1999); Emery, R., Otto, R. and O’Donohue, W., A Critical Assessment of Child Custody Evaluations: Limited Science and a Flawed System, 6 PSYCHOL. SCI. PUB. INT. 1, 5-6, 19 (2005); see also Mnookin, R. and Kornhauser, L., Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950, 969–70 (1979). When reviewing reports on the impact of joint custody on litigation, the Group should take into consideration the research addressing the tendency of sole custody to generate litigation. See, e.g., Ilfeld, Ilfeld and Alexander, Does Joint Custody Work? A First Look at Outcome Data of Relitigation, 139 AM. J. PSYCHIATRY 62 (1982); Ferreiro, B.W., Presumption of Joint Custody: A Family Policy Dilemma, 39 FAM. REL. 420, 422 (1990); Schepard A., Taking Children Seriously: Promoting Cooperative Custody After Divorce, 64 TEX. L. REV. 687, 717 (1985).

Mediation

While the enactment of presumptive joint physical custody should not have any significant impact on post-decree litigation, it could have a significant impact on 20 mediation. The current judicial preference to award custody to only one of two parents creates powerful incentives for parents to litigate rather than mediate.

In my experience as a mediator, I have yet to meet a parent who, if given a truly meaningful choice, did not want to have custody of his or her children. My experience has been that parents -- fathers, in particular -- who say they are willing to agree to allow the other parent -- usually, the mother -- to have sole custody of their children really only do so because they have at least a basic understanding of the historical place of the maternal preference in Minnesota law and of the judicial resistance to joint physical custody. When I ask a parent if, putting the potential costs and risks of losing in court aside, they would prefer to have some kind of physical custody of their children -- whether sole or joint -- the universal answer is “yes.” All too frequently, parents agree to forego sole physical custody simply because they do not believe they have any other viable choice. In this respect, the resulting Agreement, if one is reached, is essentially an adhesion contract. It is not avoidable on that basis, however.17

Another observation I can make from my experience as both a mediator and an attorney is that few things unravel nearly completed mediated agreements quite effectively as the judicial preference for sole custody. In more than one case, I have helped two parties who were in agreement on joint custody work out a mediated agreement and sent them each off to have it reviewed by independent counsel of their own choosing, only to have one or both parents (usually, but not always the mother) return with a request to change the arrangement from joint to sole custody. Perhaps to a greater extent in the past than today, attorneys seem to tend to advise mothers not to agree to joint custody because they could get more money (child support), perhaps an advantageous position with respect to occupancy of the homestead, and a greater share of decision-making authority with sole custody. Attorneys advise their clients against joint physical custody for reasons having to do

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with the interests of the parent who is their client rather than what is in the best interest of the child.

When the parties return to me after consulting with their attorneys and inform me that they have changed their minds and now want sole custody for themselves, the process is transformed from a cooperative one to an adversarial one. Their attorneys correctly advise them that to “win” sole custody, each will have to establish that he or she is more valuable to the children and that the other parent is more harmful to the children. Parents who had been focused on trying to figure out ways to work together for the benefit of their children shift their focus to trying to figure out ways to denigrate and impugn each other. They report to the court that they have not been able to work out an agreement through mediation. They then schedule their cases for adversarial proceedings involving ever-increasing levels of humiliation, aggravation and frustration. In this process, one or the other party eventually succumbs, one way or another. The champion emerges

17 An adhesion contract is one between two parties with unequal bargaining power that the party with the weaker bargaining power signs because he has no real choice about the terms. It is “voluntary” in the sense that it is not signed under force or duress. Under certain circumstances, however, a court may refuse to enforce such a contract if it involves a sale of goods covered by the Uniform Commercial Code, on the grounds that enforcing such agreements would be unconscionable. 21 with the title “custodial parent” proudly emblazoned on his or her chest, and the vanquished parent must throw himself or herself at the mercy of the court and the other parent for whatever bones of “parenting time” they are generous enough to throw.

In my experience, I have observed that beginning a mediation session from a baseline of equality and shared parenting responsibilities fosters a shift from the parties’ own selfish interests to those of their child. This observation is supported by the research literature suggesting that presumptive joint custody encourages mature behavior and discourages divisive, childish conflict between parents. Potash, Marlin S., Psychological Support for a Rebuttable Presumption of Joint Custody, 4 PROB. L. J. 17 (1982). The sole custody preference has the opposite effect.

Mindful of the fact that equality of parenting privilege will be the cornerstone of court decisions,

parents are likely to be far more cooperative in pre-trial mediation, and may avoid litigation all

together. If on the other hand, either of the potential litigants forecasts an advantageous

position in court, their involvement in meaningful mediation may be severely compromised,

and the efforts of even the most skilled mediators may be thwarted.

Guidubaldi, supra n. 15, at 8.

The adversarial system is ill-suited for the resolution of custody and parenting time disputes. The enactment of a legislative presumptive in favor of joint physical custody will not prevent all couples from litigating their problems, of course. It would, however, remove a significant incentive to litigate, while at the same time sending a clear message to parents that they are each equally

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valuable and important to their children. It is to be expected that not all parents will hear that message. The Group, however, should consider whether this might nevertheless be a more positive message to communicate to parents than what is currently being communicated to them by the judicial preference for sole custody.

The Group should also consider the long-term benefits to be had from legislative enactments that have the effect of encouraging parties to mediate rather than litigate custody and parenting time issues. In one long-term study, researchers demonstrated the positive impact of a few hours of mediation, in comparison to the adversarial process, twelve years after the divorce. Emery, R., Sbarra, D. and Grover, T., Divorce Mediation: Research and Reflections, 43 FAM. CT. REV. 22, 30-31 (2005). Parents assigned to mediation have been found to be more likely to settle cases without litigation, to settle more quickly, to be more compliant with making child support payments, to use alternative dispute resolution processes for the resolution of post-decree problems, and to express satisfaction with both the resulting court orders and the process.

Ibid. at 26-28. Children of parents who have resolved their cases through mediation had more contact with the nonresidential parent over the long term, with no concomitant increases in interparental conflict. Id. at 30-31. 22

Child Support

Prior to the adoption of Income Shares child support guidelines in Minnesota in 2006, Minnesota’s child support laws provided an extremely strong financial incentive to seek sole physical custody of one’s children. To begin with, an award of sole physical custody shielded the party acquiring that label from liability for the payment of child support to the other parent. Payment of child support was the exclusive responsibility of noncustodial parents. The amount of that obligation in any particular case was calculated on the basis of percentage guidelines that took only the noncustodial parent’s income into consideration and ignored the need of noncustodial parents to provide for their own support and for the needs of their children during their parenting time with them. In those days, only joint custodians received the benefit of having both parents’ incomes, and the amount of time they each spend with the child, taken into consideration. Hortis v. Hortis, 367 N.W. 2d 633 (Minn. App. 1985); Valento v. Valento, 385 N.W. 2d 860 (Minn. App. 1986). Under the new statutory child support guidelines, both parents’ incomes are taken into consideration, as is each parent’s need to allocate some portion of his or her income to self-support and to parenting time expenses. MINN. STAT. §§518A.34, 518A.36, 518A.42. Consequently, the new guidelines greatly reduce financial incentives for seeking either sole or joint physical custody.

In assessing the potential impact of presumptive joint physical custody on either the calculation or the enforcement of child support, it is important to read the actual language of the new child support guidelines very carefully. I have observed a tendency among some of my colleagues to view the new guidelines as creating a new definition of joint physical custody under which parents are joint physical custodians if they each have parenting time with the child at least 45.1% of the year. The new guidelines do, in fact, establish a different method for calculating child support in such cases than in cases in which one or the other parent has less parenting time than that. But the new

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guidelines neither require nor assume anything about how much parenting time qualifies as joint physical custody. The new guidelines do not alter the definition of joint physical custody at all.18

Similarly, some child support officials and attorneys may be under the mistaken impression that if two parties share joint physical custody and one of them stops spending much time with the children, then the other party will not be able to obtain an upward modification of child support to reflect her increased share of parenting time expense without also modifying the custody designation. This could be a significant concern, given that the legal standard for modification of custody is rather onerous, normally requiring proof of endangerment or impairment. MINN. STAT. §518.18. This concern, however, is based on a misunderstanding of Minnesota law.

18 Both before and after the enactment of the new child support guidelines, the legislature has defined joint physical custody as meaning simply that the child’s residence is structured between the parties. No change has been made to that definition. MINN. STAT. §518.003 (2008). 23

Modification of child support is governed by MINN. STAT. §518A.39. The grounds for modification of support appear in subparagraph (a), which provides, in its entirety, as follows:

The terms of an order respecting maintenance or support may be modified upon a showing of one or more of the following, any of which makes the terms unreasonable and unfair: (1) substantially increased or decreased gross income of an obligor or obligee; (2) substantially increased or decreased need of an obligor or obligee or the child or children that are the subject of these proceedings; (3) receipt of assistance under the AFDC program formerly codified under sections 256.72 to 256.87 or 256B.01 to 256B.40, or chapter 256J or 256K; (4) a change in the cost of living for either party as measured by the Federal Bureau of Labor Statistics; (5) extraordinary medical expenses of the child not provided for under section 518A.41;(6) a change in the availability of appropriate health care coverage or a substantial increase or decrease in health care coverage costs; (7) the addition of work-related or education-related child care expenses of the obligee or a substantial increase or decrease in existing work-related or education-related child care expenses; or (8) upon the emancipation of the child, as provided in subdivision 5.

As can be seen, there is no requirement that a parent provide proof of entitlement to a change of custody before he or she can be granted a modification of child support. As far as increased or decreased parenting time is concerned, subparagraph (2) specifically provides that increased or decreased need of either the obligor or the obligee is grounds for modification of child support. If there is a substantial change in the amount of time a child spends with a parent, it will either increase or decrease the cost of that parent’s parenting time. That is to say, it will increase or decrease his or her need.

Subparagraph (b) of Section 518A.39 provides, in pertinent part:

It is presumed that there has been a substantial change in circumstances under paragraph (a) and the terms of a current support order shall be rebuttably presumed to be unreasonable and unfair if: (1) the application of the child support guidelines in section 518A.35, to the current circumstances of the parties results in a calculated court order that is at least 20 percent and at least $75 per

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month higher or lower than the current support order or, if the current support order is less than $75, it results in a calculated court order that is at least 20 percent per month higher or lower....

As can be seen, there is nothing in the statute requiring a party seeking a modification of child support to prove, in addition to a change of circumstances of the kind described in 24 Section 518A.39, that grounds for modification of custody under Section 518.18 also exist.19

Given that Minnesota’s new Income Shares child support guidelines have only recently been enacted, there has not been a great deal of time for the development of judicial precedent interpreting them. If there is concern about possible judicial grafting of additional requirements onto the child support modification statute in the future, though, then the Group should consider whether these can be addressed proactively by means of an appropriate amendment to the support modification statute. For example, a provision could be added to Section 518A.39 expressly stating that a party need not establish grounds for modification of custody or parenting time in order to obtain a modification of child support on the basis of increased or decreased need. Another possibility would be to amend Section 518A.39 to add “substantial change in parenting time, whether or not the change is effected pursuant to Section 518.18.”

A concern is sometimes expressed that children may be adversely affected by joint physical custody because the amount of child support ordered and paid by one parent to the other in such cases is typically lower than in sole custody situations. Again, in Minnesota, the calculation of the amount of child support is no longer tied to the custody label. What matters now is not the label but the actual amount of time each parent spends with the child. Accordingly, the adoption of presumptive joint physical custody as the preferred label for parenting time arrangements should have no impact on the amount of child support ordered.

Even if the custody label did have an impact on the amount of child support ordered, however, research shows that fathers who have more contact with their children provide more supplementary and in-kind support of their children in addition to their court-ordered child support payments. Pearson, J. and Thoennes, N., Supporting Children After

Divorce: The Influence of Custody on Support Levels and Payments, 22 FAM. L.Q. 319, 321 (1988); Farbricius, W. and Braver, S., Non-child Support Expenditures on Children by Nonresidential Divorced Fathers, 41 FAM. CT. REV. 321 (2003). It has also been observed that 30% of mothers with sole physical custody report a total absence of child support payments over a twelve-month period, while the percentage of mothers reporting complete non-payment of child support in joint physical custody cases was zero (0%.) Pearson, J. and Thoennes, N., Supporting children after divorce: The influence of custody on support levels and payments, 22 FAM. L. Q. 319, 329 (Fall, 1988).20

19 There have been cases that have held that a change of custody can be a sufficient reason for a modification of child support, see, e.g., Buntje v. Buntje, 511 N.W. 2d 479 (Minn. App. 1994), but I am not aware of any case that has held that modification of custody is a necessary condition for modification of child support. Such a holding would be contrary to the clear language of Section 518A.39.

20 “On the average, sole custody mothers reported receiving 63 percent of what they were owed. For joint legal/maternal residential custody and joint residential custody parents, the percentages

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were 81 and 95 percent, respectively. Phrased somewhat different, 31 percent of the mothers with sole custody and 20 percent of those with joint legal/maternal residential custody reported receiving no more than half of what they were owed. There were no instances in which fathers with joint residential custody were reported to have met less than half of their support obligation. Thus, when child support was ordered in a case calling for joint residential custody, this obligation was typically met.” Ibid. at 330. 25 [M]others with joint residential custody [are] significantly better off than their counterparts with sole custody....[T]he best payment patterns [are] exhibited by those with joint residential and joint legal arrangements. Patterns for absent fathers with sole maternal custody arrangements [are] the least favorable....

Ibid. at 329, 335.

Accordingly, if at some point in time in the future the legislature decides to once again tie child support to the custody label, then the impact of presumptive joint custody on children’s financial well-being arguably can be expected to be positive, or at least not negative. Child Development Research comparing the impact of joint physical custody arrangements and sole physical custody arrangements on children generally show better outcomes for the joint custody children than for the ones in sole custody situations.

Children in joint custody generally have closer attachments to both parents than children in sole custody arrangements do. See, e.g., Buchanan, C., Maccoby, E. and Dornbusch, S., ADOLESCENTS AFTER DIVORCE 264(1996); Luepnitz, D., A Comparison of Maternal, Paternal, and Joint Custody: Understanding the Varieties of Post-Divorce Family Life, J. DIVORCE (Spring 1986) at 1, 4–5. Joint custody fathers tend to maintain more continuing contact and greater involvement with their children over time than noncustodial fathers. Arditti, J., Differences Between Fathers with Joint Custody and Noncustodial Fathers, 623 AM ORTHOPSYCHIATRIC ASSOC. 186, 187 (1992); Ferreiro, B.W., Presumption of Joint Custody: A Family Policy Dilemma, 39 FAM. REL. 420, 421 (1990). Closeness to both parents, in turn, predicts more positive adjustment outcomes for children. Buchanan, Maccoby and Dornbusch, supra. “In many ways, joint physical custody is the ideal arrangement for children because they still have two parents very much involved in their lives.” Emery, R., THE TRUTH ABOUT CHILDREN AND DIVORCE: DEALING WITH THE EMOTIONS SO YOU AND YOUR CHILDREN CAN THRIVE 176 (2004). This is consistent with research showing that joint custody children experience fewer loyalty conflicts than do sole custody children. Buchanan, Maccoby and Dornbusch, supra at 221-226, 258; see also Buchanan, C., Maccoby, E., and Dornbusch, S., Caught Between Parents: Adolescents’ Experience in Divorced Homes, 62 CHILD DEV. 1008 (1991).

Parents with joint physical custody report less inter-parent conflict than do parents in sole custody situations. Ibid. at 64-65. The significance of this particular research finding, however, must be considered in light of the possibility that the couples studied in them already had a greater willingness to cooperate than sole custody couples do, as reflected 26 in their decision to share joint custody. On the other hand, there does not appear to be any evidence that sharing physical custody necessarily leads to increased conflict between parents. See Kelly, R. and Ward, S., Allocating Custodial Responsibilities at Divorce: Social Science Research and the American Law Institute’s Approximation Rule, 40 FAM. CT. REV. 350, 361–62 (2002).

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A number of research studies have found a positive correlation between joint custody and children’s psychological well-being. Some examples: adolescents in joint custody have fared better on tests of emotional, behavioral and academic functioning than did adolescents in the sole custody of a mother or a father. Buchanan, Maccoby and Dornbusch, supra. A number of research studies have observed better outcomes for joint custody children in relation to self-esteem, emotional adjustment, behavioral and divorce-specific adjustment. Bauserman, supra. Differences between sole and joint custody children in relation to academic achievement are not as significant. Ibid. at 97; see also Breivik, K. and Olweus, D., Adolescents’ Adjustment in Four Post-Divorce Family Structures: Single Mother, Stepfather, Joint Physical Custody and Single Father Families, J. DIVORCE & REMARRIAGE (May 2006) at 99, 118.

It is often hypothesized that joint physical custody of very young children is not likely to be good for them because young children need the security of a primary attachment figure and consistent routines. See, e.g., Emery, supra at 178-85. However, what research exists on this issue actually tends to support the opposite conclusion. Infants in intact families typically tend to form attachments to both their mother and their father, at least when they are raised in homes in which both their mother and their father are present and have frequent contact with them. Moreover, even infants have been observed to adjust well to spending regular time in another home, as many do in day-care, including overnights in a nonresidential home. Ibid. at 178-80. There is also some research showing that overnight stays in a nonresidential home do not harm children as young as three years of age, and are actually positively associated with better adjustment of children as young as four years of age. Pruett, M., Ebling, R. and Insabella, G., Critical Aspects of Parenting Plans for Young Children: Interjecting Data into the Debate About Overnights, 42 FAM. CT. REV. 39, 54-55 (2004). Regular overnights with a second parent helps preserve that parent’s commitment to the child and the child’s attachment to that parent. Emery, supra at 181-82; Kelly and Ward, supra at 359.

Research shows that children tend to adjust better to their parents’ separation or divorce when joint physical custody is awarded than when an award of sole custody is made to one parent with visitation to the other. See, e.g., Ferreiro, B., Presumption of joint custody: A family policy dilemma, 39 FAM. RELATIONS 420 (1990); Glazer, S., Joint custody: Is it good for the children? 39 EDITORIAL RES. REP. 58 (1989); Pearson, J. and Thoennes, N., Custody after divorce: Demographic and attitudinal patterns, 60 AM. J. OF ORTHOPSYCHIATRY 233 (1990); Wolchik, S., Braver, S. and Sandler, I., Maternal versus joint custody: Children’s postseparation experiences and adjustment, 14 J. OF CLINICAL CHILD PSYCHOLOGY 5 (1985); Shiller, V., Loyalty Conflicts and Family Relationships in Latency Age Boys: A Comparison of Joint and Maternal Custody, 9 J. DIVORCE 17, 37 (1986). It might be feared that switching between households will confuse children, or 27 that children will experience loyalty conflicts in joint custody situations. The research, however, does not bear this out. To the contrary, “One of the most important predictors of child adjustment following divorce appears to be the amount of contact the child has with the out-of-home parents” Donnelly and Finkelhor, supra at 838; cf. Tschann, J., Johnston, J., Kline, M. and Wallerstein, J., Family process and children’s functioning during divorce, 51 J. OF MARRIAGE AND THE FAM. 431 (1989).

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Unfortunately, the concept of location-engendered stability (one home, one bed) has been incorrectly overemphasized...without due consideration for the greater significance to the child of the emotional, social and cognitive contributions of both parent-child relationships. Living in one location (geographic stability) ensures only one type of stability. Stability is also created...by the predictable comings and goings,...consistent and appropriate care, affection and acceptance from both parents. Bauserman, supra at 97.

Financial considerations are sometimes deemed relevant to discussions about presumptive joint custody because a child’s well-being and development can be affected, at least to some extent, by his or her material comfort. It is sometimes suggested that joint custody entails more expense because it means that two households must be maintained, instead of one.21 The difficulty with this notion is that it assumes that only one parent needs to have a home and that children will never have overnight stays with the nonresidential parent. No one may care that a noncustodial father is living in a cardboard box, but people should care about it if there is a child sleeping in it with him. The additional cost of maintaining two households instead of one applies in every situation in which parents do not live together; it is not unique to joint physical custody situations. Whether a parent is only a “visitor” parent or a joint custodian, he or she is still going to have to provide a room for the child on those occasions when the child is either in his care or participating in an overnight “visit” at his home.

It is also sometimes suggested that presumptive joint custody will impoverish women because it will incline them to bargain away their property and child support rights in order to “retain” custody.22 See, e.g., Polikoff, N., Custody and visitation: their

21 See, e.g., Melli, M. and Brown, P., The Economics of Shared Custody: Developing an Equitable Formula for Dual Residence, 31 HOUS. L. REV. 543, 554 (1994); Hardcastle, G., Joint Custody: A Family Court Judge’s Perspective, 32 FAM. L. Q. 201, 210, 212 (1998); Ahrons, C., Joint Custody Arrangements in the Post-Divorce Family, 6 J. OF DIVORCE 185, 202 (1980); Singer, J. and Reynolds, W., A Dissent on Joint Custody, 47 MD. L. REV. 497 (1988); Patterson, The Added Cost of Shared Lives, FAM. ADVOC. 10 (Fall, 1982).

22 It is not uncommon for commentators and judges to use the term “retain” in reference to maternal custody and the term “award” in reference to paternal custody, even in the context of an initial custody determination. This betrays a belief that mothers have a superior, natural right to custody of their children, while for fathers it is something more akin to a gift or privilege to be bestowed by a legislator or a judge 28 relationship to establishing and enforcing support, in 2 IMPROVING CHILD SUPPORT PRAC. (1985). Of course, this kind of suggestion proceeds on the sexist notion that sole custody should always be awarded to the mother. Even if the terms were gender-neutralized, however, the argument still wouldn’t be any stronger, because parents can be equally inclined to -- and, in fact, often do -- bargain away their property and child support rights in order to secure custody rights even when the courts apply a preference for awarding sole custody.

only upon those who are able to demonstrate their worthiness. This is an example of how the maternal preference, although no longer explicitly applied by name, continues to operate sub silentio.

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In addition to ensuring material well-being in the nonresidential parent’s home as well as in the residential parent’s home, there are a number of other ways that joint physical custody contributes to the financial well-being of children. To begin with, by removing a significant incentive for litigating initial custody determinations (see infra), the thousands of dollars that many parents currently spend fighting for sole custody could be applied to other things, such as a college education fund for their children. Next, requiring both parents to share child-care responsibilities can be expected to free up more time for each of them to devote to their careers and professional development, rather than forcing either of them to be relegated to the role of full-time homemaker. Joint physical custody arrangements can also decrease the need for paid child-care, thereby making more money available to both parents to spend directly on their children.

Moreover, as one pair of researchers put it: “we found no evidence that joint custody was harmful to the economic interests of women and children.” Pearson and Thoennes, supra at 325, 335.

CONSTITUTIONAL LAW

In a long line of cases, the United States Supreme Court has held that a parent’s right to the custody and care of his or her own children is a fundamental right that cannot be taken from a parent except upon proof that depriving the parent of the right is the least drastic means of achieving a compelling government interest. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Santosky v. Kramer, 455 U.S. 745, 753 (1982); Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Prince v. Massachusetts, 321 U.S. 158, 166 (1944)("It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder"); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Troxel v. Granville, 530 U.S. 57 (2000); Wisconsin v. Yoder, 406 U.S. 205 (1972); Skinner v. Oklahoma, 316 U.S. 535 (1941)(“rights...to raise one’s child have been deemed ‘essential’” and “far more precious than property rights” and are “basic civil rights.”) See also Carson v. Elrod, 411 F. Supp. 645, 649 (E.D. Va. 1975)(“No bond is more precious and none should be more zealously protected by the law as the bond between parent and child”); cf. Quillon v. Walcott, 434 U.S. 246, 255 (1978). It has been said that “the interest of a parent in the companionship, care, custody and management of his children ‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.’” Stanley v. 29 Illinois, supra, quoting Kovacs v. Cooper, 336 U.S. 77, 95 (1949)(Frankfurter, J., concurring.) The right of a parent to the care, custody and nurture of his or her children “is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by [the First] Amendment and Amendments 5, 9 and 14.” Doe v. Irwin, 441 F. Supp. 1247 (D.C. Mich. 1985.)

When a fundamental right is implicated, a legislative classification is presumed unconstitutional and is subjected to strict scrutiny, with the burden on the party seeking to uphold the statute to demonstrate that it is narrowly tailored to achieve a compelling non-discriminatory interest that cannot be achieved by any less drastic means. Griswold v. Connecticut, 381 U.S. 479 (1965); City of

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Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989); Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972); Hunter v. Erickson, 393 U.S. 385, 89 S. Ct. 557, 21 L. Ed. 2d 616 (1969); Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 31 (1977). . If legislation discriminates with respect to a fundamental right, the party seeking to justify the discrimination must show that the legislation is drawn with precision and narrowly tailored to serve a compelling, non-discriminatory objective. If there is another reasonable way to achieve the statutory objective with a lesser burden on fundamental rights, the State must choose the less drastic means. Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982); Dunn v. Blumstein, supra.

Minnesota appellate courts have not yet chosen to address the apparent inconsistency of the legal tradition of depriving one or the other of two parents of his or her fundamental rights as a parent, under the rubric of “awarding” one or the other parent sole custody. The Minnesota Court of Appeals had an opportunity to address this issue in In re the Custody of J.S.S., 707 N.W.2d 706 (Minn. App. 2006) a case challenging the constitutionality of a Minnesota statute that gives all unmarried mothers sole legal and physical custody of their children and denies all unmarried fathers the right of access or parenting time with their children unless and until the father initiates a proceeding in court and proves that the child will benefit from having contact with his father. The United States Supreme Court had held, in Stanley v. Illinois, supra, that the parental rights of unmarried fathers are just as much fundamental rights as are the parental rights of married parents of either sex, and that statutes purporting to deny them that right without a prior hearing violate the Due Process and Equal Protection Clauses of the 14th Amendment. The U.S. Supreme Court specifically ruled that the fact that a statute provides a procedure by which a parent can regain custody a child is not enough to save a statute that categorically denies parental rights to an entire class of persons prior to any hearing. 23 This point was brought to the attention of the Minnesota Court of Appeals

23 “[W]e reject any suggestion that we need not consider the propriety of the [statute] because Stanley might be able to regain custody of his children [through the commencement of legal proceedings.] The suggestion is that if Stanley has been treated differently from other parents, the difference is immaterial and not legally cognizable for the purposes of the Fourteenth Amendment. This Court has not, however, embraced the general proposition that a wrong may be done if it can be undone. Cf. Sniadach v. Family Finance Corp., 395 U.S. 337 (1969). Surely, in the case before us, if there is delay between the doing and the undoing petitioner suffers from the deprivation of his children, and the children suffer from uncertainty and dislocation.” Stanley v. Illinois, supra. 30 31 both in the Appellant’s written brief and during oral arguments. APPELLANT’S BRIEF AND APPENDIX, In re the Custody of J.S.S., Docket No. A04-2477. In its written decision, however, the Court simply chose to ignore Stanley v. Illinois and the argument that parents’ rights of custody are fundamental rights, without even mentioning them. Instead, it applied the intermediate level of scrutiny that is applied in Equal Protection cases in which no fundamental right is implicated. In this way, the Court of Appeals was able to conclude that the sex discrimination practiced by the legislature in its enactment of the sole maternal custody statute (MINN. STAT. §257.75) served the important government interest of facilitating the collection of child support. Because the intermediate standard (unlike the standard that applies when a fundamental right is implicated)

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does not require a court to consider less drastic means that could have been taken to achieve that goal, the Court of Appeals’ thereby avoided having to address the point that joint custodians are not exempt from child support obligations.

It is unfortunate when courts choose to ignore higher court precedents. Disobedience to the rule of law erodes public confidence in the judiciary and, if left unbridled and unchecked, foments distrust and rebellion -- initially by members of the disadvantaged classes, but eventually by all members of society when they come to realize that governments of men and not of laws are as unjust to them as they are to the less fortunate.

Concluding Remark

Finally, I would like to suggest to the Group that at a time when women and men are both working outside the home in roughly equal numbers, it may be appropriate to consider whether it makes sense any longer to relegate one parent to “stay-at-home care-provider” status and the other to “visitor’ status. Perhaps the time is ripe to consider whether our custody laws should be updated to reflect modern realities rather than outmoded sex role stereotypes,24 and the benefits that may be realized by the enactment of laws that recognize the equal value, dignity and fundamental rights of both parents and children.

24 The notion that fathers are incapable of nurturing children is no longer viable. Both experience and social science research show that they are indeed capable. See, e.g., Gasser, R. and Taylor, C., Role adjustment of single parent fathers with dependent children, 25 FAM. COORDINATOR 397-401 (1976); Gersick, K., Fathers by choice: Divorced men who receive custody of their children, in G. Levinger and O. Moles, eds. DIVORCE AND SEPARATION: CONTENT, CAUSE AND CONSEQUENCES (1979); Hanson, S., Divorced Fathers with Custody, in P. Bronstein and C.P. Cowan, eds., FATHERHOOD TODAY: MEN’S CHANGING ROLE IN THE FAMILY (1988); Chang, P. and Dienard, A., Single-Father Caretakers: Demographic Characteristics and Adjustment Processes, 52 AM. J. OF ORTHOPSYCHIATRY 236 (1982); Orthner, D. and Lewis, K., Single-Father Competence in Child-Rearing, 13 FAM. L. Q. 27; Warshak, R., Father Custody and Child Development: A Review and Analysis of Psychological Research, 4 BEH. SCI. AND THE L 185 (1986).

Addenda to written submission of Tom James, “Thinking Clearly About Presumptive Joint Physical Custody”

To the end of the first full paragraph on page 30, insert footnote 25.5:

It is sometimes suggested that parental custody rights are “fundamental rights”

only when a third party (i.e., someone other than a parent) challenges a parent’s

right to custody. See, e.g., Brinig, M., Does Parental Autonomy Require Equal

Custody at Divorce? 65 LA. L. REV. 1345 (2005). This approach reduces the U.S. Supreme Court’s classification of parental rights as “fundamental rights” to mere obiter dictum. It is true that legal digests of the law tend to group third-party custody cases together under a subheading separate from inter-parent custody cases, with the result that “fundamental rights” language typically

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appears in the former digest category rather than the latter. However useful the distinction may be to legal digest editors, however, it is not especially significant from a constitutional perspective. No court has ever held that the “fundamentalness” of a right depends on the context in which it is asserted. The “compelling government interest,” “necessity” and “less drastic means” analysis will produce different outcomes in different contexts, but that does not change the essential character of the right itself. See generally Hubin, D., Parental Rights and Due Process, 1 J. OF L. AND FAM. STUDIES 123 (1999).

To footnote 23 on page 28, add:

See also Pruett, Kyle D., FATHERNEED (2003) for research showing that infants are “prewired” for attachment to both men and women, and explaining the lifelong benefits of early attachment to both parents. On the other hand, it is not clear that attempts to “force” attachment are beneficial for children. For example, it is doubtful that attempts to coerce attachment between a one-, two- or three-year-old infant and a parent who has been completely absent from the child’s life, by requiring the child to start spending an equal amount of time with each parent, would be successful. This concern, however, relates to the construction of parenting time schedules, not the designation of child custody arrangements as “joint” or “sole.” Again, under Minnesota law, joint physical custody has to do with the essential character of the parenting time, not the amount of it. MINN. STAT. §518.003, supra; Blonigen, supra (holding that even the classic visitation schedule of every other weekend with additional time in the summer can qualify as a joint physical custody arrangement, because Minnesota’s definition of joint physical custody is not time-dependent.) Accordingly, the enactment of a joint physical custody presumption would not result in requiring less-involved or absent parents to spend more time with their children. The Group should also bear in mind that the legislative proposal is for a rebuttable presumption. Since abandonment demonstrates the most extreme form of child neglect, evidence of a parent’s complete and voluntary absence from a child’s life should be admissible to rebut the presumption, just as evidence of inability or unwillingness to properly care for a child should be admissible to rebut the presumption. In those cases, it may be in a child’s best interest not to permit the parent to have either legal or physical custody. Finally, in thinking about these kinds of concerns, the Group should keep in mind that courts have ample power to fashion orders to protect children from harm while helping them establish or re-establish relationships with an absent parent. See MINN. STAT. §§518.175, 176. The proposal for a rebuttable presumption of joint physical custody would not alter those powers.

__________________________________________________________________________________________________________________

As a member of the Sovereign People of the state of Minnesota, I appear before you in propria persona, as a sovereign.

The question that the legislature has brought to this study group is to determine how a presumption of joint custody would affect the People of the state.

This question was brought because of the pressure of the People to require that our family law statutes comply with Natural Law, and for the legislature to codify that already contained within Natural Law and our common law.

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To those unfamiliar with law, you must first understand Natural Law.

There is a Creator that made “all of this”.

There are certain Laws by which this creation operates.

I don’t care if you are an atheist.

You still accept and comply with Natural Law.

The mere fact that you do not go into a lake and try to breath water proves that you acknowledge there are natural laws, which we all must abide by.

In our constitutions we the People secured to ourselves those unalienable rights contained within unalienable Natural Law.

There is a series of building blocks.

Natural Law is the foundation

Common law rests upon Natural Law.

Our constitutions upon Natural and common law.

Then the statutes upon the constitution.

You have been asked to evaluate the consequences of the presumption of joint custody.

Natural Law and common law already contain this presumption, as every parent has the right of custody to his or her child.

Our constitutions secure the rights of parents to custody of their children under liberty, and even under the Ninth Amendment of the federal constitution.

The United States Supreme Court has repeatedly declared the rights of parents being a liberty interest secured by our constitution. The stare decisis of Troxel vs. Granville clearly affirms what is an unalienable right; the custody of parents over their children is a protected liberty interest.

You have been asked to study what will happen if we comply with our constitutions. What will happen if we obey the law?

Justice.

Justice for those that are parents.

Justice for those that are children.

Justice for those that have been beaten and assaulted.

We have already declared that we secured our right to custody of our children, under the liberty clause and the Ninth Amendment. We already declared to be secure in our persons, and that no one would assault and beat us.

What the government has done is that it has covered for the criminals.

Instead of holding people accountable for their actions, it has created loopholes, programs and study groups.

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When someone has been assaulted, we the People declare that assault is a violation of our law, and the perpetrator must be brought before a jury.

An assault upon one of us is an assault upon all of us. There is a fallacy that is being sold to us. That fallacy is Domestic Abuse. Even the police dread going on a call to investigate a fight between a man and a woman. A bar room brawl is preferred.

When a married couple with children file for dissolution of that marriage, they enter the courtroom with their liberty rights intact. Accordingly, they each have the 100% right to parent their children.

But the court is told that this marriage, this contract between the parties is to be dissolved. Property and liberty interests are at stake. Because the interests at stake are secured by our constitutions, the action must be an action at law. Meaning only a jury can decide the disputed claims.

What are the consequences if the People, the Legislature and the courts actually abided by our constitutions? What would happen if this study group sent a message back to the Legislature that under the law, the presumption of joint custody already exists?

People would have to grow up and act like Citizens.

They will have to act responsibly or have their rights removed.

If parents choose to dissolve their marriage, and cannot do so as adults, then the judge would be restrained to do only one action, call the jury to adjudicate the liberty and property interests of the parents.

Those creating children will need to act as true parents, acting in the best interest of their children, or a jury will be asked to remove their parental rights.

The police would know we are serious, that we demand are laws be upheld.

There would no longer be domestic abuse.

Assault is assault.

Men found by a jury to have beaten women and or children would be jailed.

It would not matter if the woman fears testifying.

Because the crime of assault is a crime against all of us, neighbors and family members would know that a criminal would be brought to justice, and they would come forward.

There would no longer be government-sponsored programs for battered women, or court ordered psychological exams, anger management classes, custody evaluators and guardian ad litems.

Many of the people in this room would lose their jobs, even those that are members of this study group.

With every right comes a responsibility. People have the right to contract in marriage. When people who seek dissolution of their marriage contract refuse to act responsibly, then jury will decide the liberty and property interests.

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People will think twice before entering into a marriage contract. And resolve their disputes as adults, instead of requiring the judges to babysit them in divorce court.

The consequences are upon us for our violations of Natural Law.

Abiding by the law will bring us justice.

Thomas Jefferson said, “When the government fears the People, there is liberty, but when the people fear the government there is tyranny.”

My final words to you are that you must comply with Natural Law.

Send a simple message back to the Legislature.

The presumption of joint custody is already contained within our law.

STOP violating the LAW, and uphold the law the People secured in our constitutions.

--Nancy Lazaryan

__________________________________________________________________________________________________________________

PRESENTERS BACKGROUND

Prefers to remain as anonymous as possible to protect children and family from retaliationChemical Engineer From WSUIT Systems Architect GE, State of NY and UofMSix Sigma CertifiedWas published in a ChE scientific journal as an undergradIn 2000 was recognized as part of project with a plaque in the Smithsonian for making technological advances in computing technologyNon-Custodial parent of 2 children and primary provider for 5 other children, 7 totalOwner of www.UPRO.us, A United Media Consultant for Peoples Rights Groups and Parental Rights Groups Collectively Across the Globe and largest online parental rights social network www.myspace.com/helpmedaddi My motivation comes from my children’s silenced cries for help and restoring Natural LawEx wife almost died because I couldn’t get the necessary Medical Care in time before the brain damage set inNever been convicted of a crimeStill fighting the system and ex to be with my kids without bi-proxy abuse

SCIENTIFIC DATA ANALYSIS OF PSYCHOLOGICAL RESEARCH

Real observational data consists of at least 3 data points.

Holding something constant or having a control group to determine correlations

Repeatability

Scientist’s interpolate-mean they try to predict values in between the extreme data end points. Scientists don’t extrapolate-meaning when they go beyond the data end points otherwise their analysis isn’t given much credibility.

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http://www.myspace.com/helpmedaddi

http://www.UPRO.us/

Probability and Statistics of the data-standard deviations, confidence levels, propagation of error, averages etc, are they stated in any report. Scientists don’t just look up values they verify.

Peer review, just because it’s published doesn’t mean the rest of the scientific, legal or medical world has to accept or agree with their conclusions.

Real scientists don’t hide their data; they show propagation of error, standard deviations and confidence intervals which are the basics for any scientific report.

The State is biggest employer of psychological degrees.

What level of math is required for one of these degrees-Algebra

Psychology is a science created out of philosophy which is foundational to the freedom of individual thought

When psychology is used in legislative or legal sense, the psychological industry has the power to take away the individuality of the individual by grouping citizens into subjective categories of fortunate and less fortunate.

Ethical rules taught from a class at Metropolitan State University by Mark Matthews in Psychology-“Maximizing Welfare…when likely to produce the greatest net welfare for all. Secrecy is taken as guilt,” These are major contradictions to our legal system and right to an individual trial before just taking something from someone.

Things that a parent would usually be uplifted and rewarded for, can be used against an innocent or unsuspecting parent. Like serving in the military, being a dedicated worker, being religious, being a business traveler, being accused as being difficult for questioning the process.

The psychological industry in essence acting as an arm of the State and has empowered themselves to become the judger of facts in a community where they are given more credibility than any other emerging science.

Professionals suggest that they should not get involved in custody cases and have an affidavit in my case that suggests it’s out of their ethical standards for any psychologist to make custody determinations. Dr. Gilbertson in Blaine.

How much credibility can this industry have in making an accusation over a sovereign entity and should their testimony even be allowed in our court rooms?

LAW

“We know that the Law is good if it is used as it should be used. It must be remembered, of course, that laws are made, not for good people, but for lawbreakers and criminals… for those who lie and give false testimony or who do anything else contrary to sound doctrine.” 1 Timothy 8-10.

SOVEREIGN AND ARTIFICIAL ENTITIES AND SUBJECT STATUSES

What is a sovereign entity? We the People and our compact for a corrupt free government.

What is an artificial entity? Subjects, slaves, Corporations, Non-Profits, States, Federal Government, except the living constitution

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Who or what is subjected to an artificial entities rule? It’s subjects

Is the Family a sovereign entity? Yes 9th Amendment

Is each Parent is a sovereign entity? 1-8 Cont Amendments

All citizens are not sovereigns. True

Are all sovereigns citizens? Yes

What laws are above a sovereign? Natural Law

What is Natural Law? Inherent laws of nature for human existence of survival or laws given to us by our Creator and can’t be legislated away. Abolition of slavery and the Civil War were about Natural Law.

Is Natural law protected in our constitution? Natural Law 9th Amendment and 1st Amendment

Is the State of MN or an agency of the state a sovereign entity? No, if so then that would put the state above the people and so the people would become subject of the state with two masters, the State and Federal government.

Legislature, Executive, Judicial are not sovereign entities, they are artificial entities created by the People

JURISDICTION

There are protections for jury trials in 4 places of our Constitutions? 5th, 6th, 7th and 14th Amendments of the US Constitution and MN Constitution Article 1, section 4

Originally what charges did a sovereign have to be indicted for, before having their life, liberty or property taken from them? Felony

What body was then able to indict? Grand Jury

What did Blakely v. Washington 2004 in the Supreme Court say about who has a right to limit or remove a liberty right? Must be a jury!

Since when did the states have an occupational right to practice law? They don’t!

9th Amendment Since 1791-Intended for our inalienable rights like marriage, the family protection and parental rights- Griswold v. Connecticut 1965

14th Amendment-Did this protection bring the sovereign down to the subjects or did it bring the subjects up to the People? State and Federal government are not above the People.

The rights guaranteed by the constitution must not be abridged by legislation.

Does immunity apply when the subject matter is out of the states jurisdiction and a litigant didn’t expect the judge to have that kind of authority? No they are not immune. Furthermore, when any officer of the court knowingly operates to deny due process they are not immune.

What will happen if this study group renders an opinion from the Judicial branch for a case not yet heard? Absolute Injustice

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Who has authority to limit or remove a person’s life, liberty or property? JURY

BURDEN OF PROOF

What burden of proof is required to limit or remove a liberty interest? Beyond a Reasonable Doubt.

How does Troxel v Granville a 2000 US Supreme Court Case define parental rights? “…perhaps one of the oldest fundamental liberty interests recognized by this court.”

Burden lies too heavily on the one telling the truth when not beyond a reasonable doubt standard

Can the Psychological science have any degree of certainty for the beyond a reasonable doubt standard and not mistakenly interject corruption and violate due process of law?

The relief time or exhaustive grievance process is in violation of the people’s constitutional right to a speedy trial.

Innocent until proven guilty standard also applies

DUE PROCESS

Non-Voidable Evolving Law of the Land=Due Process Without Corruption

New Legislative Statutes-The assumption is new statutes are to help our justice system to become more efficient, a more perfect justice and allow for a better way of doing things, while yet still preserving justice and due process without corruption for the people, that’s the intent in allowing states to make new laws.

Must still adhere to the Constitutions intent in order for it to be called due process otherwise officials are operating outside their jurisdiction when they collude with others to prevent sovereigns from exercising their constitutional rights.

The Constitutional protections were in place to prevent abuse of power, system wide corruption or special interest rule.

If the law of the land was the same before as after a legislative change then there shouldn’t be any complaints for the innocent in receiving reasonable due process.

CONSTITUTION

It’s a Living Document-Changes over time

Protections for the People

Can’t just read the words literally-must understand the intent

In interpreting the Constitution, "real effect should be given to all the words it uses." Myers v. United States, 272 U. S. 52, 272 U. S. 151. Griswold v. Connecticut

One of the constitutions intents was to protect the citizens from corruption or mob rule. During the times when due process challenges first started occurring from the states, the Supreme Court talked about corruption as if corruption was in the distant past like the Pre-Declaration of Independence and colony days, and talked about corruption as an unlikely scenario because the right of a jury trial almost guaranteed due process of law without corruption.

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http://supreme.justia.com/us/272/52/case.html#151

http://supreme.justia.com/us/272/52/case.html

Married families and parental rights are contained within the 9th Amendment, and it further protects the sovereign right of the People when the 14th Amendment of equal protection was enacted. Even with a special Amendment, theses specially protected classes of citizens have fewer rights than any other group of citizens which is repugnant to the constitution.

14th Amendment did not make the people subjects of any governmental rule without due process of law because these rights were still contained within the 9th Amendment.

Search and seizures-Must know exactly what is contained in object or information being sought after. No more witch hunts.

What was the purpose of a jury? Another protection for the sovereign to be free from government corruption.

Does the constitution distinguish a difference between life, liberty or property? No they are all treated the same.

The brown eyed people can’t all get together and make rules against the blue eyed people.

GENERAL ARGUMENT:

State has no right to interfere with an agreement that was entered into by two parties so long as they don’t make their own law and the agreement was equitable and fair at the time of the contract. No-Fault, means we don’t care what the reasons are but the courts must still recognize the pacts parents may have made in the past.

Parental Rights are Liberty

Constitutional protections apply once the nature of the enforcement becomes criminal

A presumption of JPC is already implied to be consistent with due process

Only a separate independent jury tribunal has power over our liberty interests when transferring from equity to criminal.

An enforcement act knowingly denying a person of their due process rights and a subject objects to the enforcement agent’s errors, the enforcement agent will no be longer immune if they continue knowingly trying to deny a subject of their due process rights because that is not the intent of allowing the law of the land to change by legislation.

CONCLUSION-What Can Be Done NOW:

Focus on the healing. This means everyone’s perspective of due process on the Study Group needs to start changing NOW and understand the distinction between the two courts! Depending on the circumstances, when a public official or legislature operates outside their jurisdiction, they are not necessarily immune!

Let’s give the legislature some positive direction for them to start fixing the problems on their own by restoring the public’s confidence in making it right.

This will restore the integrity of the State if done right.

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Let’s restore the authority of the People back over government and special interest rule. We as a society owe it to our future generations, namely our children to fix this NOW!

Imagine how much integrity could be restored if the healing started now and how much faster the healing will take effect in society!

Report back to the legislature “The judicial branch does not have jurisdiction over the subject matter nor does it have authority to render a legal opinion at this time.”

Supplemental Information:

Perham v. J.R.

…the presumption that a parent is acting in the best interests of his child must be a rebuttable one, since certainly not all parents are actuated by the unselfish motive the law presumes.

Pierce v. Society of Sisters, 268 U.S. 510

The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

See 1 W. Blackstone, Commentaries *452-453; 2 J. Kent, Commentaries on American Law *203-206; J. Schouler, A Treatise on the Law of Domestic Relations 335-353 (3d ed. 1882); G. Field, The Legal Relations of Infants 63-80 (1888).

It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.

BLAKELY v. WASHINGTON 2004

“The Framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to “the unanimous suffrage of twelve of his equals and neighbours,”” Blakely v. Washington 542 U.S. 296 (2004) 111 Wash. App. 851, 47 P.3d 149 citing 4 Blackstone, Commentaries, at 343, “rather than a lone employee of the State.”

Our commitment to Apprendi in this context reflects not just respect for longstanding precedent, but the need to give intelligible content to the right of jury trial. That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage

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ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary. See Letter XV by the Federal Farmer (Jan. 18, 1788), reprinted in 2 The Complete Anti-Federalist 315, 320 (H. Storing ed. 1981) (describing the jury as “secur[ing] to the people at large, their just and rightful controul in the judicial department”); John Adams, Diary Entry (Feb. 12, 1771), reprinted in 2 Works of John Adams 252, 253 (C. Adams ed. 1850) (“[T]he common people, should have as complete a control … in every judgment of a court of judicature” as in the legislature); Letter from Thomas Jefferson to the Abbé Arnoux (July 19, 1789), reprinted in 15 Papers of Thomas Jefferson 282, 283 (J. Boyd ed. 1958) (“Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative”); Jones v. United States, 526 U.S. 227, 244—248 (1999). Apprendi carries out this design by ensuring that the judge’s authority to sentence derives wholly from the jury’s verdict. Without that restriction, the jury would not exercise the control that the Framers intended.

This would mean, for example, that a judge could sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it–or of making an illegal lane change while fleeing the death scene.

First, the Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power. It limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury. Indeterminate sentencing does not do so. It increases judicial discretion, to be sure, but not at the expense of the jury’s traditional function of finding the facts essential to lawful imposition of the penalty.

HUNT v. RHODES 1828

Mr. Justice WASHINGTON delivered the opinion of the [supreme] Court [of the United States].

Equity may compel parties to perform their AGREEMENTS, when fairly entered into, according to their terms; but it has NO power to make agreements for parties, and then compel them to execute the same. The former is a legitimate branch of its jurisdiction, and in its exercise, is highly beneficial to society. The latter is WITHOUT its authority, and the exercise of it would be not only an USURPATION of power, but would be HIGHLY mischievous in its consequences. HUNT v. RHODES, 26 U.S. 1, 1 Pet. 1, 7 L.Ed. 27 (1828)

Hurtado v. California 1884

Upheld that while the procedures at which due process may be administered or modified, the intent of the constitutional ideals and protections unless otherwise modified and ratified remain constant without separating life, liberty or property. The intend of the provisions were to protect the citizen from special interest or subjective guilt and by removing the safeguards that protect the citizen from system wide corruption would be a denial of due process by any standard.

…before the adoption of our Constitution had it been in the power of government to put the subject on trial for his life whenever a justice of the peace, holding his office at the will of the crown, should certify that he had committed a capital crime. That such officers are, in some of the States, elected by the people, does not add to the protection of the citizen, for one of the peculiar benefits of the

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http://www.law.cornell.edu/supct-cgi/get-us-cite?526+227

grand jury system, as it exists in this country and England, is that it is composed, as a general rule, of a body of private persons, who do not hold office at the will of the government, or at the will of voters. In many, if not in all, of the States, civil officers are disqualified to sit on grand juries. In the secrecy of the investigations by grand juries, the weak and helpless -- proscribed, perhaps, because of their race, or pursued by an unreasoning before the adoption of our Constitution had it been in the power of government to put the subject on trial for his life whenever a justice of the peace, holding his office at the will of the crown, should certify that he had committed a capital crime. That such officers are, in some of the States, elected by the people, does not add to the protection of the citizen, for one of the peculiar benefits of the grand jury system, as it exists in this country and England, is that it is composed, as a general rule, of a body of private persons, who do not hold office at the will of the government, or at the will of voters. In many, if not in all, of the States, civil officers are disqualified to sit on grand juries. In the secrecy of the investigations by grand juries, the weak and helpless -- proscribed, perhaps, because of their race, or pursued by an unreasoning

…the general principles of public liberty and private right which lie at the foundation of all free government, but the very institutions which, venerable by time and custom, have been tried by experience and found fit and necessary for the preservation of those principles, and which, having been the birthright and inheritance of every English subject, crossed the Atlantic with the colonists and were transplanted and established in the fundamental laws of the State; that, having been originally introduced into the Constitution of the United States as a limitation upon the powers of the government, brought into being by that instrument, it has now been added as an additional security to the individual against oppression by the States themselves; that one of these institutions is that of the grand jury, an indictment or presentment by which against the accused in cases of alleged felonies is an essential part of due process of law in order that he may not be harassed or destroyed by prosecutions founded only upon private malice or popular fury.

(Prior to Declaration of Independence) forbade that any person should be required to answer for his life except upon indictment or presentment of a grand jury. And we have seen that the people of the original States deemed it of vital importance to incorporate that principle into our Constitution not only by requiring due process of law in all proceedings involving life, liberty, or property, but, by specific and express provision, giving immunity from prosecution, in capital cases, except by that mode of procedure.

To these considerations may be added others of very great significance. When the Fourteenth Amendment was adopted, all the States of the Union, some in terms, all substantially, declared, in their constitutions, that no person shall be deprived of life, liberty, or property, otherwise than "by the judgment of his peers, or the law of the land," or "without due process of law." When that Amendment was adopted, the constitution of each State, with few exceptions, contained, and still contains, a Bill of Rights enumerating the rights of life, liberty and property which cannot be impaired or destroyed by the legislative department.

Any proceeding otherwise authorized by law which is not thus sanctioned by usage, or which supersedes and displaces one that is, cannot be regarded as due process of law.

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…but the law itself, as a rule of conduct, may be changed at the will or even at the whim of the legislature, unless prevented by constitutional limitations.

It follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law.

No individual or body of men has a discretionary or arbitrary power to commit any person to prison; no man can be restrained of his liberty, be prevented from removing himself from place to place as he chooses, be compelled to go to a place contrary to his inclination, or be in any way imprisoned or confined unless by virtue of the express laws of the land.

U.S. SUPREME COURT

BALDWIN V. NEW YORK, 399 U.S. 66 (1970)

399 U.S. 66

BALDWIN v. NEW YORK APPEAL FROM THE COURT OF APPEALS OF NEW YORK No. 188. Argued December 9, 1969 Decided June 22, 1970MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring in the judgment.

The Constitution guarantees a right of trial by jury in two separate places but in neither does it hint of any difference between "petty" offenses and "serious" offenses. Article III, 2, cl. 3, provides that "[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury," and Amendment VI provides that "[i]n all criminal prosecutions, the accused shall [399 U.S. 66, 75] enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . ." Thus the Constitution itself guarantees a jury trial "[i]n all criminal prosecutions" and for "all crimes."

U.S. SUPREME COURT

BOYD V. UNITED STATES, 116 U.S. 616 (1886)

Boyd v. United States

Argued December 11, 14, 1886

Decided February 1, 1886

116 U.S. 616

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Search and seizure af a man' private paper to be used in evidence for the purpose of convicting him of a crime, recovering a penalty, or of forfeiting his property is totally different from the search and seizure of stolen goods, dutiable articles on which the duties have not been paid, and the like, which rightfully belong to the custody of the law.The things here forbidden are two -- search and seizure. And not all searches nor all seizures are forbidden, but only those that are unreasonable. Reasonable searches, therefore, may be allowed, and if the thing sought be found, it may be seized.

U.S. SUPREME COURT

GRISWOLD V. CONNECTICUT, 381 U.S. 479 (1965)

GRISWOLD V. CONNECTICUT

NO. 496

ARGUED MARCH 29-30, 1965

DECIDED JUNE 7, 1965

381 U.S. 479

…privacy in the marital relation is fundamental and basic -- a personal right "retained by the people" within the meaning of the Ninth Amendment. Connecticut cannot constitutionally abridge this fundamental right, which is protected by the Fourteenth Amendment from infringement by the States.

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October 21, 2008

RE: Joint Physical Care

Testimony to Committee on Joint Physical Care

Greetings to the members of the Joint Physical Care Study Group.

Congratulations on the decision to consider legislation on what could perhaps be the greatest civil rights issue of the 21st century; a child’s right to be parented by both parents. As a member of the Iowa House Of Representatives for 12 years, children and family issues dominated my tenure.

Being Chairman of the House Human Resources Committee, I hadextensive back ground on the problems facing children and family.

Early on in my career, I accepted the conventional public perception that the problems faced by children of divorce were usually because of deadbeat parents, usually the father. However, after several years on the Child Support Recovery Advisory Committee and working on individual

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constituent cases, it became apparent, even obvious to me that the problems were more systemic than personal.

Divorce, visitation, custody, and child support issues are perhaps the nastiest issues a legislaturedeals with as it cuts across party lines, and affects virtually every family in some way. The conclusion I came to was that it was the “Tender Years Doctrine” followed by the courts throughout the United States that was the biggest single contributor to the problem experiencedby children of divorce. The Courts are quite simply 30 years behind the times and demonstrate a sexist assumption towards both men and women.

American families are no longer Ward and June Cleaver. For instance, recently it was reported that Iowa had more children in day care per capital than any other state. Not your typical assumption about the state of Iowa. In Iowa as in Minnesota and the rest of the nation, the fact is that children are JUST AS LIKLEY to have a father equally responsible for their daily care as the mom. In most households, and specifically two income households, men share child rearing and other household responsibilities equally.

Current court policy towards assuming that Mom is the nurturer and that as long as Dad shows up every other week with ball and glove in hand is both unrealistic and sexist. The fact is that Moms and Dads are both nurturers; just in different ways and children need BOTH nurturing styles.

The crucial importance of Dad’s involvement in their children’s lives is well documented and it is especially true of girls. It is crucial to their development and health that young girls learn from her father that you can have a successful relationship with a member of the opposite sex without that relationship being a sexual one. That single lesson is being learned by fewer and fewer girls(and boys) to tragic consequence.

Joint Physical Care as a presumption, or even an emphasized option, requires the court to get upto speed with our culture. The emphasis must be on the children’s’ right to access and nurturing by BOTH parents. In my work on child support issues, it became very obvious that the more involvement that Dads had with their children, the better the children did and more willing they were to pay their support obligation.

Joint Physical Care takes those positive aspects one step further.

Anecdotally, I believe that JPC has been a real success in Iowa. Many people have contacted me since my retirement and thanked me for my efforts on this issue. Yes, Iowa’s court system is still for the most part hostile to the law but those judges with courage enough to consider it, grant it, and enforce it, have also told me that once the attorneys in their judicial district know it is on the table, work out differences in the divorce settlement much better, and there is much more cooperation between the parties in honoring the decree.

And the children win.

Thank you for this opportunity to share my experience, and I will be happy to be of anyassistance in the passage of this important, even landmark legislation.

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Daniel J. Boddicker

IOWA STATE REPRESENTATIVE

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I am a father who has laid in bed at night and cried himself to sleep. I know, men aren't supposed to have emotions and that is exactly why laws need to be rewritten. All I have in this world is my son. Every waking moment he is not with me is spent in anticipation, of when I get to see him again. I read Parenting Magazine, which is designated to women, but I read it anyway. A reality in law is that fathers aren't nurturers and judges traditionally side on the women's side, with a father choice of every other weekend. Lets face it what are the numbers of Women's Advocates vs. Father Advocates.

You see, I am a father who has been accused of giving my son protective hugs in court. My father gave me hugs, and now the action of giving a hug is under attack if you are a father. Can I be any clearer why their needs to be a change in custody.

Second, Judges need to be held accountable. I was just in magistrate court and a female judge curled her nose at me and sarcastically said, "Mr. Jacobsen, really, I don't have time for you, I have other cases that need to be heard today. I wanted to say excuse me, I have only asked two questions, and as a citizen of these United States I am guaranteed a right to a fair hearing. Did I mention that I was the only male in the court room of 8 people. How do you think the decision came out? Although, I have always made my child support payments on time, laser beams were being shot out of every ones eye's as to say "dead beat DAD. I don't have any rights!

Minnesota can take the lead in providing fair court decisions, and stop leaving fatherless children. As a teacher in Minnesota Correctional Institution, I have seen plenty of fatherless children who don't know proper boundaries.

Sincerely,

Chad Jacobsen

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The Judicial and Family Court System – The Federal, State and County vs. The Non Custodial Father – Perspective from a Black Custodial Mother

Toya Allen

Black and Latino men are the chief victims of this country’s HIJACKED Judicial and Family Court System. Whenever Black and Latino Fathers, Grandfathers, Brothers, Uncles and Sons have spoken out against gender biased child custody designations and partisan child support orders, every attempt is made to marginalize their voice. Significant energy and scrutiny is expended to determine their felony record, incarceration history and mental health. Because this system is becoming increasingly corrupt, White Men across multiple income levels are beginning to experience this same repressive existence. The HIJACKED Judicial and Family Court System has created common ground for fathers of all races and income levels by its repressive and discriminatory practices.

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A Black or Latino man’s level of education, employment history or position within the community has no relevance when he appears in front of our biased criminal or family court system. Education and employment are only important when Child Support Judges such as Magistrate Maria K. Pastoor are given the opportunity to abuse their discretion by inputting incomes of fathers to maximize child support versus using actual historical data. The only method to overturn a court order where judicial discretion has been abused (i.e. Allen v. Thompson) by a judge, such as Child Support Magistrate Maria K. Pastoor; is to appeal the ruling to the next level of judicial authority – which takes significant time and money, something many of these men do not have.

I was a single mother from the birth of my Black son in November 2004 to the date I married his father in March 2007. You do not need to be an educated Black Woman employed as a manager within Corporate America to know that you can unfairly extract an inflated child support obligation from the father of your child by using the federal Title IV-D within the family court system. The system is so biased; based on precedent you can maneuver the parental visitation schedule to your liking with guaranteed immunity to felony prosecution under MN Statue 609.26. The Federal Title IV-D program, originally intended to provide child support collection tools for single mothers who were on public assistance (i.e. welfare, section VIII housing, etc). It has been updated to allow the participation of six figure salary single mothers, like me, for the one time charge of only $25.00.

In the case of child custody; parental consultant contractors and custody evaluators employed by the county do a great job creating the image that child custody is not predetermined in advance and that they are going to make a decision that is in the best interest of the child. If you are the single mother and you do not represent a risk to your child by way of violence or drugs; it is a slam dunk that you will be named the SOLE PHYSICAL CUSTODIAN 90% of the time. The process has nothing to do with your level of education, employment, annual income or parental commitment. Equal suitability and qualifications always equals victory for the race and gender that has the power.

In the case of child support; similar to Jim Crow, the family court system doesn’t attempt to pretend who it wants to win. All of the power players within the child support family court system are focused on continuing this deadly cycle to remain employed in this dangerous web. The Child Support Magistrates/Judges provide the biased and binding court order muscle, Assistant District Attorneys provide the legal counsel muscle and Child Support Enforcement officials provide child support payment collection muscle (with the power to garnish, suspend drivers license and incarcerate). The level of “Power High” felt by a single mother who has given birth out of wedlock against the father is intoxicating. For only $25.00 to become a part of Title IV-D, a single mother is provided with a support team that includes the judge, the jury and the executioner.

Although in most of these cases, rape or incest has not occurred, the HIJACKED Judicial and Family Court System has predetermined that the single mother is the victim and the single father is the villain. The county created affidavits and legal position always represent the single mother who by default 90% of the time has been designated as the SOLE PHYSICAL CUSTODIAN of the child – yes, the county and the state are on the same side as the mother versus the father who is responsible for assembling his own legal team (assuming he has the financial resources to do so).

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Of our own free will, prior to court involvement, Horace Allen and I signed and notarized two mutually agreed upon contracts that were identical in structure and format; one was for child custody (Exhibit 22) and the other was for child support (Exhibit 23). A child custody hearing was held in front of Judge Hooten and the child custody contract that signed by Horace Allen and myself was upheld and a court order was issued that mimicked our contract in its entirety.

Unfortunately for Horace Allen and the many non-custodial fathers that have come before him and will come after him, the child support family court system acted in my best interest and declared the mutually agreed upon child support contract as null and void. Listed below are the details from my experience in the child support family court system to defend my accusation that the system has been HIJACKED by people who have a vested interest and maintaining its status quo regardless of its long term effects on the social and public safety fabric of our communities.

Horace Allen resided in Atlanta, GA. I resided in the city of the hearing; Shakopee, MN.

Magistrate Maria K. Pastoor had an axe to grind against Horace Allen given her previous court order was reversed by the State of MN Court of Appeals due to “abuse of discretion”.

Assistant D.A. Miriam Wolf indicated to me it would be to our advantage if the motion was heard in front of Magistrate Maria K. Pastoor given her prior history with Horace Allen.

The original mutually agreed upon hearing date was scheduled for 04/28/06. My legal team consisting of Leslie Swenson, child support officer, and Assistant D.A. Miriam Wolf had the hearing date continued to May 19, 2008 without the mutual agreement of Horace Allen.

Horace Allen indicated via fax and priority mail that 04/19/06 would not work (Exhibit 24) along with providing alternative dates in both June and July (Exhibit 24). Rather than choose a date after May 19, 2006 based on Horace Allen’s request; out of bad faith, hate and spite Scott County Family Court MOVED the hearing date “up one week” to May 12, 2006.

The 05/12/06 hearing date was important for two reasons; 1) Child Support Magistrate Maria K. Pastoor would be judge, 2) Horace Allen would be unable to submit responsive pleadings within the 14 day legal time limit (a requirement used by Child Support Magistrate Maria K. Pastoor against Nikki Thompson during a remanded hearing on 12/09/05 - Exhibit 26).

As a Pro Se litigant, Horace Allen never requested a hearing date change over ten hearings since 2003. Was he not entitled to at least schedule change or continuance?

Child Support Magistrate Maria K. Pastoor’s finding of fact stated that because the telephone and fax numbers were not on the letterhead that Horace Allen used to request alternative hearing dates, Scott County Family Court System had no means by which to communicate with him.

In his Motion for Review, Horace Allen provided telephone and fax confirmation records that showed inbound and outbound telephone and fax communication between himself and the Scott County Family Court System. Horace Allen’s contact information was also on file.

My legal team was allowed to submit an affidavit. Horace Allen was prevented from submitting an affidavit within the legal time limit based on the date he was notified of the 05/12/06 hearing date. This legal fact was in Horace Allen’s Motion for Review that was rejected by Judge Young.

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Child Support Magistrate Maria K. Pastoor ruled the child support contract between Horace Allen and I was invalid. This is in direct contradiction to the child custody agreement with the identical format and structure that was deemed valid six months later by Judge Hooten.

Magistrate Maria K. Pastoor was provided with the discretion to avenge her prior court order that was reversed by the Court of Appeals, by ruling the child support contract was invalid and the 05/12/06 hearing date that prevented Horace Allen from submitting an affidavit was legal.

Child Support Magistrate Maria K. Pastoor provided me with a child support order that was almost $1,000.00 more per month than Horace Allen and I previous agreed to. My child support order was more than child support order of $1,268.00 for his older son.

Horace Allen submitted a Motion for Review to be given his day court and the ability to submit an affidavit. I submitted a Motion for Review to correct a clerical error that would provide me with several hundred dollars of additional child care reimbursement.

Horace’s Motion for Review was denied and my Motion for Review was approved. A trial was held shortly thereafter, the clerical error was corrected and Horace Allen was immediately invoiced for the total child support and child care obligation in question.

To add insult to injury, Child Support Magistrate Maria K. Pastoor complimented me for my performance after the hearing was completed, a gesture she never extended to Horace Allen. Based on the evidence presented, the same biased family court system that allows Black single mothers the ability to utilize federal, state and local governments to apply discriminatory child support and child custody leverage against the father of their children is the brethren of the biased criminal court system that is incarcerating and marginalizing Black men at record rates.

Government Sanctioned Marital Status; Single Motherhood – Why Title IV-D is Destroying Black and Latino Communities and Threatens to Destroy Communities of all Ethnicities –

Toya Allen

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I am a former single mother who is married to the father of our three year old son. The status of single motherhood is currently being glorified by women in the entertainment industry; “a mom with a baby is the new sheik.” In some cases the photos of their children born out of wedlock can fetch millions of dollars in exchange for exclusive publishing rights. Their reality of single motherhood is similar to my previous reality; the challenges associated with finances, education, employment and care giver options are not applicable given their available resources. If you are a single mother that has given birth to a child out of wedlock and you are NOT dependent on welfare, food stamps, section VIII housing or subsidized child care for the survival of you and your child; this article DOES NOT apply to you. Although my annual six figure compensation does not compare to the seven or eight figures for single mothers within the entertainment industry, the truth is that neither of us are or were dependent on public assistance funded by tax payers.

My definition of single motherhood by choice does not apply to women with children as a result of rape, incest, accidental death or war; but to those (including myself) that made the conscious

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decision to have an unprotected sexual relationship without being married, you have to become accountable for 1) your life, 2) your child’s life and 3) their relationship with their father. Despite my son’s level of exceptional intelligence, handsome features and fearless approach to life, the statistics clearly show that without the participation of his father in his life he would have had to endure against insurmountable odds in the areas of; life expectancy, college graduation, professional employment, gang participation, drugs and eventual incarceration within the $50 Billion prison industrial complex. Single mothers and their young Black and Latino men must toil against these alarming facts everyday. The horrifying statistics in each of these areas (40% high school graduation rate, 30% college graduation rate, 50% real unemployment rate and a 44% incarceration rate) make every single mother unconsciously say to themselves everyday “is today going to be my son’s turn to become another statistic.”

Communities of color have to come to the realization that despite the fact that Bill Bennett chose inappropriate words to describe the societal outcomes from single motherhood, at the end of the day his words were foundationally accurate. The statistics involving Black and Latino men raised by single mothers is not only earth shattering, but it continues to increase despite improved sexual education and contraception choices that only require monthly or quarterly intervention for 99% prevention of an unplanned pregnancy. The time for action is now and the time for talking was yesterday. The phrase “Single Mother” is referred to by the media, government officials and advocates of communities of color as if it were the result of some type of “airborne virus” such as the FLU. The reality is that the same manner in which unmarried women become a single mothers is the same manner in which people contract HIV; “unprotected sex”. Anybody can write about this subject of single motherhood, but for the originator of the text to carry any real influence within communities of color, they must represent the population, the problem and the solution. Similar to HIV, single motherhood is a lifestyle choice that unfortunately people of color have incorrectly made 66% of the time. Unlike HIV, it is required that the man choose not to wear a condom and the woman not demand that one is required to enter her temple.

The decision making process for sexual interaction between two unmarried people consists of three tiers; 1) no birth control is used based on the age, physical and financial health of the participants to support the outcome, 2) no condom is used as a form of birth control based on the age, physical and financial heath of the participants to support the outcome or 3) a condom is successfully used as a form of birth control regardless of the variables in the equation. People should be held accountable for their consent to options 1 or 2 and their decision to do so should not be supported by governmental public policy or funded by tax payer dollars. Nation building needs to start at home.

Government programs, such as Title IV-D, should be dissolved immediately because they provide guaranteed employment for pubic sector executives and their employees in support of single mothers who refuse to become accountable for the consequences of having unprotected sex as unmarried women. How is it possible to assign liability to two uninsured motorists if you can not properly discern who is at fault? Is it not logical to conclude that both parties are at fault and both parties should be held financially liable for their actions? Is it also not logical to conclude that the government does not have the right to determine fault or financial liability in this matter?

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Single mothers who are mentally stable, do not abuse or sell drugs are designated as the sole physical custodian of their children 90% of the time. After the single mother is designated as the sole physical custodian, she is then recognized as the victim and not at fault for the circumstances relative to her choices regarding sexual interactions or partners. When paternity has been established, the father of the child (the other uninsured motorist) is then recognized as the villain. The single mother is provided with the resources of the county, the state and the federal government against the villain, the child’s father, in preparation of a child support hearing. A hearing is held in front of a Child Support Magistrate to determine the monthly child support obligation of the father based on his income or some cases inputted income (what the court says he is capable of making) and not the actual cost of raising the child. How do we define this process as equal accountability?

As a prior single mother who has first hand experience with the biased processes within the Scott County Family Court System; the manner in which these processes are completed would put the Jim Crow and Apartheid discriminatory economic and political systems to shame. The child custody and child support processes ignores the historical fact that boys and girls raised without fathers, regardless of their race or ethnicity, are destined for a lifetime of being dependent on the system (i.e. welfare, mental health, housing, education, employment services, incarceration, etc).

The solution is very simple when children are born out of wedlock; joint physical and legal child custody should become a presumption at birth and child support should be eliminated as a weapon or punishment to be used against either parent. In regards to child custody, a parental plan should be created to 1) detail parental time for the mother and father, 2) the development process for the child and to 3) recognize and enforce the parental laws that govern the municipality. In regards to child support, when the child is in the care of the mother they are responsible for the development, feeding and clothing of the child and when the child is in the care of the father then they are responsible for the development, feeding and clothing of the child. The more parental time that is requested and granted by either parent, the more burden they must accept in the areas of development, feeding and clothing.

If the father chooses to not be involved in his child’s life, it is the mother who must accept responsibility for 1) choosing an unacceptable sexual partner, 2) not to utilize birth control on a daily, monthly or quarterly basis and 3) to not protect herself against HIV by demanding that a condom be used before allowing a sexual partner to enter her temple. If this level of social and financial accountability is not required, the vicious social, public safety and incarceration cycle is fertilized and a permanent underclass is perpetuated. The government must discontinue its public policy of making unmarried women today’s small winner and tomorrow’s BIG LOSER.

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